Probate & Estate Litigation

Published on: April 18, 2012

Appellants Contend that Court Does Not have Proper Jurisdiction in Prior Ruling

by Stephen Bilkis

The appellants of a probate case have filed for an objection against the original ruling of probate by the court. The court did not accept the objections of the appellants.

According to the objections of the appellants, they asserted that the surrogate court should have used its authority to decide on the matter of estate’s original probate due to the fact that another court already had previous jurisdiction over it. The appellants further argue that the original order for probate had already been settled in a foreign country. Such foreign proceeding was concluded by the court as possibly replicated in the city.

The decedent’s will was executed in the city in which the decedent, also known as the testator, has lived. That will and testament revokes all the previous wills that have been written by the testator. The will contains instructions on the funeral expenses and debt payments. The remaining assets after the previous expenses are deducted shall be awarded to the former wife of the testator and another party. The male respondent of this court proceeding was identified as the executor of the will.

Published on: April 18, 2012

Heir Brings Will Contest Action

by Stephen Bilkis

A woman died and signed a will two days prior to her death. The will state that she left her entire estate to one man. But, she did have another will dated many years prior to her death. It states that she left her assets to her brother and sister, unfortunately they did died already, and it says if they died partial of the assets will be preceded to one of the Catholic Congregation and the remainder to her cousin and his wife.

The man filed a civil case to validate the earlier will, to which the other heirs from another will filed an objection. The eight day trial resulted on a denial to the motion, by which the jury found that the deceased person doesn’t have the legal ability to make a will and it was only done by influence. A New York Probate Lawyer said the man requests a higher court to review the lower court decision and again denied. The heirs of the late will filed a petition to legally validate it. They issued temporary letters and no objection has been filed. And the other man from earlier will seeks leave to file objections to the late will, a stay to pending appeal and an order requiring the temporary administrator to file a bond pending appeal.

Based on records, in order to file objections, the prospective objector must have an interest in the properties that would be adversely affected by the admission of the will to attest. The man argues that he has standing because he has an interest in the properties and would be adversely affected by validation of the late will. And, as an appellant, he has contingent interest in the properties. However, this is not sufficient to file objections. The adverse consequences must be the direct result from the admission of the will to validate. It is clear that the man is not adversely affected by the validation of the late will. A Bronx Probate Lawyer said the only ground on which he can objects to the validation of the will is that there is a valid later will, which is the earlier will. However, the argument has already been determined in the prior trial and been rejected. He also argues that the court should permit him to intervene under its discretion to permit any party with a fair or slightly possible financial interest to intervene.

Published on: April 17, 2012

Court Decides if an Executor has the Right to Request a Discovery Proceeding Regarding Property

by Stephen Bilkis

The issues being raised in this estate case have two aspects. One issue talks about the objection of probate on the last will and testament of the deceased. Another issue raised on the case was whether the main executor of the will had the right to request for discovery proceeding concerning the property owned by another party.

Before the writer of the will and testament passed away, he drafted an instrument which states that all his property should go to his niece. The niece named on the will becomes in effect the executor of the will.

A New York Probate Lawyer said a few months after the drafting of the first instrument, the decedent had allegedly turned over a deed of one of his real properties to another party other than his niece by marriage. However on the same day, the decedent drafted an instrument and identified it as his last will and testament. According to that instrument, it would revoke or reverse all wills drafted prior to the recent one. This includes the first draft that named his niece the sole executor of his estate.

Published on: April 16, 2012

Court Decides if Signed Waiver and Consent to Probate is Valid

by Stephen Bilkis

A man who died in New York City was survived by two brothers. One lived in Endicott and the youngest in Pennsylvania who drove to Endicott and arrived in the evening to attend his brother’s funeral the following day.

Prior to the funeral, the youngest brother suggested that arrangements be made to read the will soon. Shortly after the funeral a conference was held at the Trust Company. Present were the two brothers, the executive vice-president of the Trust Company; the counsel for the Trust Company; and an associate attorney with his father-in-law.

A New York Probate Lawyer said the testimony concerning what occurred at that conference is completely contradictory. Postponing for the moment a discussion of the completely opposing testimony, it is agreed that both the living brothers each signed a form of Waiver and Consent to Probate. These waivers were retained by the father-in-law of the associate attorney.

Published on: April 16, 2012

Court Dicusses Validity of Joint Will in Light of Recent Divorce Proceeding

by Stephen Bilkis

A couple executed a Joint Will that will make whoever is the survivor among them as the one to be given the entire property whether own individually or several and be the executor of the irrevocable Joint Will. The Joint Will further provided that whatever remained after the death of the survivor would be distributed to a trust, with equal shares of the trust to be allocated among their grandchildren and one of their children, their daughter. The Joint Will’s terms state that it is forever binding, and may be revoked or modified only by a writing subscribed by both parties and executed with the formality of a Will.

A New York Probate Lawyer said that approximately 8 years after the execution of the Joint Will and after approximately 50 years of marriage, the couple was divorced by judgment dated April 6, 2001. Several months before, apparently in anticipation of the divorce, the couple reaffirmed the Joint Will by executing a Marital Settlement Agreement, the terms of which were incorporated into the divorce judgment. The agreement stated, in pertinent part, that neither party would attempt to revoke the Joint Will, and provided quit claim deeds granting sole title of their condominium to the husband and sole title of their other condominium to the Wife. No further action was taken by either the Wife or the husband regarding the Joint Will.

In 2006, a NY Probate Lawyer said the Wife established her 2006 Irrevocable Trust, the body of which was her condominium. The Wife and her son-in-law were named as the trustees.

Published on: April 15, 2012

Court Rules on Reasonable Attorney and Accountant’s Fees

by Stephen Bilkis

This case pertains to the accounting proceeding relative to attorneys fees, accountant’s fee and commissions.

In February 26, 1996, the decedent died leaving a will dated March 9, 1984 which was decreed on May 18, 2004 to which a letters of administration was issued to the Public Administrator on said date. The summary state shows charges to accounting party of P289,650.33 as the Public Administrator’s first and final accounting. The residuary estate under the will was directed to be paid to Diabetes Association of New York, Inc.

The court in its authority and discretion, considers a number of factors in evaluating legal services and other fees. These includes: the time spent, the complexity of the questions ivolved, the nature of the services provided, the amount of litigation required, the amounts involved and the benefit resulting from the execution of such services, the lawyer’s experience and reputation and the customary fee charge by the Bar for similar services. A New York Probate Lawyer said a legal fee must be imposed reasonably taking into consideration the valude of the estate. The attorney(s) services includes: 1) preparation and filing of the petition for temporary letters of adminstration and cross petition for probate and letters of administration together with the acocmpanying affidavits and rquiredancillary documents; (2) preparation and filing of the renunciation of nominated executor and multiple waivers of process and consent to probate for numerous distributees and legatees (3) obtaining the Public Administrator’s fiduciary bond; (4) review of known family information and research as to whereabouts of alleged distributees (5) preparation and filing of an affidavit of heirship (6) arranging for service of process of probate citations and preparation and filing of an affidavit requesting substituted service (7) preparation and filing of proposed probate decree (8) attendance at the probate citation return date (9) preparation of receipt, release and refunding agreement for the hospital, who is a legatee under decedent’s will and conversations with the administrative and legal personnel regarding same (10) preparation and filing of the Public Adminstrator’s final account and the petition for judicial settlement of account (11) arranging for service of accounting citation and ensuring adequate service of same to secure jurisdiciton over all interested parties (12) multiple telephone conferences and correspondence with various attorneys and the Public Administrator of Nassau County and the employees thereof. The said firm likewise handled the sale of the cooperative apartment and charge services in the amount of $1,500.00 for the said purpose.

Published on: April 15, 2012

Court Decides of the Dept. of Social Services can Make a Claim on Estate

by Stephen Bilkis

In a probate proceeding, the issue presented in court by the executrix is the validity of the full amount claim against the estate by the Nassau County Department of Social Services (DSS) granted by the probate court only up to the amount that would prejudice a specific bequest in favour of a legatee in decedent’s will.

The decedent and his wife have to children, one of whom is severely mentally disabled. Decedent made a declaration to the refusal of making his resources available to the medical expenses of his mentally disabled child. Decedent also executed a power of attorney, in behalf said child, appointing the Nassau County DSS of the child’s right to seek support from him. A New York Probate Lawyer said the decedent’s wife, who had an Alzheimer’s disease, was placed in a nursing home and received Medicaid benefits making the decedent a “community spouse.”

Upon death of the decedent, his will was submitted for probate. The will provided that the residuary estate is given to the surviving wife in a special needs trust and that, upon her death, the remainder of the trust shall be distributed in specific bequests among the contingent legatees. A Westchester County Probate Lawyer said a bequest was given to the disabled child in a special need trust for his benefit. A guardian ad litem was appointed, in behalf the surviving wife, who was ordered to exercise the wife’s right of election against decedent’s estate. Prior to the exercise of such right, the surviving spouse died.

Published on: April 14, 2012

Mother files Estate Litigation over Deceased Infant

by Stephen Bilkis

Decedent’s daughter was born at Nassau County hospital. A case was filed against the hospital for medical malpractice by the decedent in behalf of her daughter. The decedent, who retained counsel to represent infant plaintiff, died while the lawsuit was still pending in court. In this Estate Litigation action, Letters of administration were issued to another daughter of decedent. Administrator-daughter substituted plaintiff in the malpractice case on behalf of the decedent’s estate.

A New York Probate Lawyer said a settlement was made for the malpractice suit between the parties. Based on the Infant’s Compromise Order (ICO) the Nassau County hospital shall issue check to defendant’s officer to be deposited in an investment account for the benefit of plaintiff. The check was issued but was never cashed and the investment account was never established. The same was never negotiated nor presented for payment. The check was received by the defendant’s officer but failed to neither open the investment account nor inform any of the parties that the check was missing.

Consequently, the officer hired the services of a locator to find the missing settlement check. The officer and locator entered into an agreement as to compensation fees upon recovery of the lost check. The locator also made an agreement with plaintiff’s grandmother, living in Alabama, for payment of fees when the lost check is found.

Published on: April 14, 2012

Will Contest Action Filed regarding Lawyer’s Will

by Stephen Bilkis

On 10 May 1977, a decedent who is an attorney died. On 27 June 1977, letters of administration (estate administration) were issued to the Public Administrator, County of Nassau. He received the keys to the decedent’s residence from a Nassau County police detective on 11 May 1977 and made a thorough search of the residence. The public administrator found a sealed envelope, among other things, bearing the words “Copy of Deed to Lutheran Cemetery,” “Copy of Last Will and Testament” (carbon copy) bearing the decedent’s signature. On the back of the envelope, written across the flap was the decedent’s signature.

The objectants, three (3) of the cousins named in the instrument and five other individuals whose status was contested by the proponent in the instant case, conceded that the document was written in the decedent’s handwriting. No evidence was offered to prove that the document was a carbon copy although the proponent herself alleged that it was a carbon and not a ribbon copy. The back of the last page was blank except for the following handwritten words: “Copy of Last Will and Testament” and “Original in Safe Deposit Box in Jam. Savings Bank.”

The instrument provided for the disposition of real property and bequeathed $300.00 to each of the decedent’s eight cousins and the residuary estate to two of the cousins. It appointed the two cousins as executors of the estate.

Published on: April 13, 2012

Brothers Bring Will Contest Action over Division of Family Business

by Stephen Bilkis

A resident of Nassau County died on 28 December 2010 and was survived by his sister, the petitioner; and two (2) brothers, the respondent and movant herein. The decedent’s last will and testament dated 23 May 2000 was offered for probate (estate litigation or estate administration or will contest) by the petitioner, who was named as the sole beneficiary of the decedent’s residuary estate, as well as the executrix. Preliminary letters testamentary were issued to the petitioner on 13 January 2011. The two (2) brothers of the decedent have filed their objections to the probate of the will.

The arguments presented before the court all boil down to a supermarket known as John’s Farms, which was run by the decedent and one of his brothers (“brother A”). The supermarket is comprised of three separate closely held corporations – (1) Corp. A, which operates the grocery and dry goods business within the decedent’s Farms, owned by the decedent and brother A as equal shareholders; (2) Corp. B, which sells fish and seafood at the decedent’s Farms, and was owned by the decedent and brother A as equal shareholders; and (3) Corp C, which operates a meat market within the decedent’s Farms, owned wholly by decedent.

The two (2) brothers of the decedent were ordered by the court to deliver and turn over to the petitioner the computer taken from the decedent’s home on the date of his death. While certain computer components were eventually turned over to the petitioner, the computer components turned over to the petitioner were not part of the home computer taken from the decedent’s home. A New York Probate Lawyers said that it appeared that the wrong computer had been turned over to the petitioner. Apparently, brother A had several computers used in the business which made it difficult to differentiate and offered to reimburse the estate for the value of the decedent’s computer equipment that was not delivered to the petitioner or her counsel in lieu of turning it over. The court has denied the same stating that the offer to pay the value of the computer is essentially pointless because of the fact that the reason the petitioner sought the decedent’s home computer was to obtain any relevant business records of the decedent thereon. Hence, the petitioner sought to clone all of the computers at the decedent’s Farms.