Articles Posted in Probate & Estate Litigation

In In re Kaufman, the Appellate Division was asked to determine whether the Surrogate’s Court erred in suspending the letters of co-executors without an evidentiary hearing.

When a testator makes a will, it is their last opportunity to let the world know what they want to happen to their property once they pass away.  Testators can also choose to nominate an executor who would be responsible for managing their estate.

Wills are legally enforceable documents, and courts have a duty to uphold their terms.  Thus, whenever the court is asked to make a ruling that would circumvent the wishes of a testator, they make sure that there is a very good reason to do so supported by clear evidence.

In In re Steward the court considered whether the Surrogate’s Court erred in denying a motion to suspend co-administrators where the co-administrators were unable to get along.

SCPA § 711 describes the circumstances under which a court can  revoke letters of administration:

• Wasted assets. The court has the authority to suspend an administrator if the administrator has wasted estate assets by mismanaging estate property, making illegal investments, by misapplying estate assets, or by otherwise injuring estate property.

In In re Scott the Surrogate’s Court of Bronx County considered whether to extend preliminary letters testamentary over objections.

The petitioner, the decedent’s step daughter, was nominated in the decedent’s December 21, 2019 will to serve as the executor. The decedent died on January 30, 2020.  On July 31, 2020, the court issued an order granting preliminary letters testamentary to the petitioner.

“Letters” are an order issued by the Surrogate’s Court that gives an administrator legal authority to manage the estate of a decedent.  Typically they are issued an the beginning of a probate case when the will is admitted to probate. Preliminary letters are temporary letters that typically expire after six months.  They are issued to an executor nominated in a will that gives them limited authority when there is some sort of delay in the probate proceedings.  In this case, the delay related to an unresolved jurisdictional issue.

In In re Lewner, the Surrogate’s Court of New York County was asked to revoke the authority of the administrator of an estate on the grounds that he had not been fulfilling his fiduciary responsibilities.

The decedent died on May 19, 2016 leaving an estate with a value of over $8,000,000.  The estate had an income of over $3,000,000 from its real estate holdings.  Preliminary letters testamentary were issued to respondent on June 10, 2016.

In his petition to revoke the respondent’s preliminary letters, the petitioner alleged that the respondent was unfit to serve as an administrator as demonstrated by numerous instances in which he failed to perform his fiduciary duties. SCPA § 711.  As an example, the petitioner described how in the more than four since the decedent’s death, the respondent failed to file estate tax returns, the decedent’s final income tax return, and the fiduciary income tax returns for the estate. As a result, the estate is exposed to significant interest and penalties.  In addition, the court’s records showed that the respondent failed to perform his duties as administrator including filing an inventory as required by  22 NYCRR § 207.20.

In the Matter of Qyra, the Surrogate’s Court considered an issue related to the allocation of the money award in a wrongful death lawsuit.  On February 25, 2010, while walking in Central Park, Elmaz Qyra was struck by a tree branch and died. The administrator (personal representative) of his estate filed a lawsuit to recover damages and was awarded a $3,000,000 settlement.  The administrator petitioned the Surrogate’s Court to issue a decree allocating the entire settlement to wrongful death.  The objectant argued that a portion should be allocated to personal injury.

When someone dies as a result of negligence, the personal representative of the decedent’s estate can bring a lawsuit to recover losses suffered by the decedent as well as losses suffered by the decedent’s family. If the lawsuit is successful and money is awarded, the Surrogate’s Court must determine how to allocate the money- to personal injury, to wrongful death, or a combination of both.  The manner of allocation determines to whom the money is distributed.

Sums that are allocated to personal injury compensate the injured party—the decedent—for the conscious pain and suffering they suffered because of the negligence. Since the money awarded for personal injury belongs to the decedent, it is considered probate property and is  added to their probate estate. Sums that are allocated to wrongful death compensate the decedent’s next of kin for the losses they suffered because of the negligence.  That money is distributed directly to the next of kin. It is never a part of the decedent’s estate.

In Abram v. Abram the court was asked to consider whether the Surrogate’s Court of New York County erred in denying an evidentiary hearing on the fitness of an administrator of a decedent’s estate.

Judges have broad discretion in determined whether an administrator or executor is qualified.  Typically courts will not disqualify someone unless there is a significant reason to believe that the estate is at risk.

It is not unusual for those who challenge the fitness of an administrator to do so simply because they want to serve as administrator or because they do not like the administrator for personal reasons that have nothing to do with their fitness to serve as administrator.