Queens

Published on: April 19, 2012

Petitioner’s Request for Injunctive Relief Denied

by Stephen Bilkis

The following estate litigation was filed by the proponent. The proponent in this case is one of the three daughters of the testator. In her petition, she wanted to revoke the administration letters that were given to her sister. Because of this incident, the two sisters of the proponent had filed a motion against the proponent in to prevent her from submitting the testator’s will for probate.

The mother and now the deceased had resided in another country. One of the daughters of the deceased had requested letters of administration. In her petition, the sister had asserted that her mother was named as the distributee of the property of the proponent’s brother. The petition also indicated that the bank handling the estate administration did not perform its duty to distribute the proceeds of the estate to the others.

A New York Probate Lawyer said the two sisters gave consent to the appointment of their brother. The letters of administration were sent to the petitioner while the other sister defaulted since she was not in the city during that time. But she did receive the letter.

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 4, 2012

What are Appropriate Legal Fees in an Estate Case?

by Stephen Bilkis

On 4 July 2009, the decedent died prompting the petitioner to employ the services of a lawyer. A retainer Agreement was entered into by the parties stipulating the amount of attorney’s fees to be paid. Thereafter, the petitioner questioned the amount billed by the lawyer as his attorney’s fees alleging a wrong calculation of the estate as the basis, among others.

How much should, actually, be the attorney’s fees? What should be included or excluded?

A New York Probate Lawyer said the court has ruled that the ultimate responsibility for approving legal fees that are charged to an estate and the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate lies with them. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the court is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.

Published on: April 3, 2012

Court Decides Jurisdiction Between French and NY Wills

by Stephen Bilkis

This case started in 1951 when one of the heirs of the decedent applied for ancillary letters of administration concerning holographic will that was said to be executed in France. In his petition, it was alleged that the decedent was a resident of France who died in the same country and left properties within the jurisdiction of the New York court. The petitioner also alleged that the will was made according to French law and that the same was recognized and established accordingly under the laws of that country. This claim of the applicant for estate administration of the decedent became an issue particularly with regards to the claim of domiciliary. The question was put forward by the New York state Tax Commission and by another party who in the end filed a motion to stop the proceedings of the court. This latter party had an interest in the case because according to him, the decedent owed him money for the legal services he rendered and which amount he wanted to recover from the property of the decedent. It is worth noting that this same party is the executor named by the decedent in a will and a codicil allegedly executed by the decedent in New York. Thus, it appears the decedent executed two wills and a codicil while he was living.

A New York Probate Lawyer said that while the question of the real domicile of the decedent was still pending, the executor pushed through with the estate litigation of the will and a codicil executed by the decedent. The executor named in the will declared that the decedent was a resident of New York at the time of his death. The proponent of both the will and the codicil, who is also the executor designated in the will, argued that he was obligated to apply for the settlement of the properties of the decedent because he truly believed that the decedent was a domiciliary of New York and that if the decedent indeed transferred his domiciliary to France, that he has no sufficient information with regards to that and adding further that he was not given the opportunity to establish the veracity of the later will which was probated under French law.

The proponent with his lawyer went to France and there gathered information regarding the domicile of the decedent and also talked to witnesses relating to the will that was executed there. It was in France that the proponent was able to claim the money that he wanted to get from the probate proceeding in New York. When he returned to New York, he moved that the probate proceeding be discontinued claiming among others that based on his findings, there is very little chance of them succeeding in proving the New York residency of the decedent and as such, there is no more reason for the proceeding to push through. NY York Probate Lawyer said the proponent also asked the court that the services of his lawyers be paid including the one that he contracted in France.

Published on: April 2, 2012

Court Decides Fees for Guardians

by Stephen Bilkis

The trial discussed concerns the legal settlement of the final account of two persons and the fixation of legal fees. The two persons were the appointed guardians of the properties of the deceased incompetent man. While the administrator of the properties also filed objections and has argued for a surcharge against one of the appointed guardians and for a direction that the other appointed guardian accounts for the money supposedly belonging to the properties that he received both prior and subsequent to his appointment. A New York Probate Lawyer said the opposing motion was granted for the extent that the appointed guardian must file a detail of his acts.

It started when the sister of the incompetent man was appointed as the guardian of her brother and as well as guardian of his properties by the order of the New York Court. She was also appointed guardian as a result of the additional proceedings in the Superior Court of New Jersey, where the incompetent man possess properties. Through a court order, she was permitted to move the incompetent man and certain of his assets to California, where she resided with her husband. Years later, the sister of the incompetent man died in California. At that time, the incompetent man was also in California, as were certain assets of his estate, which were in part transferred from his properties in New York and New Jersey. Afterwards, the husband of the sister of the deceased was appointed as his guardian as well as of his properties by the order of the superior court of California, Los Angeles County.

The husband of the sister filed a petition claiming that the deceased brother-in-law was a resident of Los Angeles County and was then a patient at one of the sanitarium. A Staten Island Probate Lawyer said he also stated that his wife had been the guardian of the incompetent man by appointments in the Courts of New York and New Jersey, and that at the time of her death, as such guardian, she had in her control her personal property. It appears that the husband believes that the deceased was a resident of California, and petitioned for his appointment under the California Probate Code. Under the said section, notice is required to be given only to the relatives of the incompetent man within the second degree and residing in California. However, it is agreed that the incompetent man was not a resident of California at such time, and the law is clear that a guardian may not change the residence of the incompetent man. The protesting party concludes that the order of the California Court appointing the husband as guardian was void and further stress that all of the husband’s acts under the order are void.

Published on: April 1, 2012

Court Decides Jurisdiction Issue of French Will

by Stephen Bilkis

This case started in 1951 when one of the heirs of the decedent applied for ancillary letters of administration concerning holographic will that was said to be executed in France. In his petition, it was alleged that the decedent was a resident of France who died in the same country and left properties within the jurisdiction of the New York court. The petitioner also alleged that the will was made according to French law and that the same was recognized and established accordingly under the laws of that country. This claim of the applicant for estate administration of the decedent became an issue particularly with regards to the claim of domiciliary. The question was put forward by the New York state Tax Commission and by another party who in the end filed a motion to stop the proceedings of the court. This latter party had an interest in the case because according to him, the decedent owed him money for the legal services he rendered and which amount he wanted to recover from the property of the decedent. It is worth noting that this same party is the executor named by the decedent in a will and a codicil allegedly executed by the decedent in New York. Thus, it appears the decedent executed two wills and a codicil while he was living.

While the question of the real domicile of the decedent was still pending, the executor pushed through with the estate litigation of the will and a codicil executed by the decedent. The executor named in the will declared that the decedent was a resident of New York at the time of his death. According to a New York Probate Lawyer, the proponent of both the will and the codicil, who is also the executor designated in the will, argued that he was obligated to apply for the settlement of the properties of the decedent because he truly believed that the decedent was a domiciliary of New York and that if the decedent indeed transferred his domiciliary to France, that he has no sufficient information with regards to that and adding further that he was not given the opportunity to establish the veracity of the later will which was probated under French law.

The proponent with his lawyer went to France and there gathered information regarding the domicile of the decedent and also talked to witnesses relating to the will that was executed there. Nassau County Probate Lawyers said it was in France that the proponent was able to claim the money that he wanted to get from the probate proceeding in New York. When he returned to New York, he moved that the probate proceeding be discontinued claiming among others that based on his findings, there is very little chance of them succeeding in proving the New York residency of the decedent and as such, there is no more reason for the proceeding to push through. The proponent also asked the court that the services of his lawyers be paid including the one that he contracted in France.

Published on: March 30, 2012

Courts Discuss Bond Provisin in Estate Documents

by Stephen Bilkis

On 4 February 2007, a resident of Nassau County died leaving a will dated 20 September 2006. She was survived by her two (2) children, a grandchild and two (2) minor grandchildren. Such will has been offered for probate by the nominated executor (decedent’s husband).

The will created a trust to be funded with the “exemption amount.” The trust shall terminate upon the death of the decedent’s husband who has a limited testamentary power of appointment over the trust principal. If or to the extent that the decedent’s husband failed to exercise the limited power of appointment, the remaining trust principal is payable to the decedent’s husband 1993 Insurance Trust. The residuary estate is then payable to the decedent’s husband. The decedent’s husband and the children are named under the will as trustee and successor trustees, respectively. Also, “no bond or other security shall be required of any Executor for the faithful performance of such person’s fiduciary duties in any capacity.” Thereafter, the attorney-draftsman submitted an affidavit and averred that he inadvertently used the word “Executor” instead of “fiduciary.” Apparently, the decedent’s prior will dated 2 April 1993, which contained one trust, dispensed with a bond in the case of any “fiduciary.”

In the instant case (estate litigation or estate administration) there is no will contest. However, the court is asked to dispense with the filing of a bond by the nominated trustee due to a purported scrivener’s error in the will.

Published on: March 29, 2012

Court Decides if Petition for Preliminary Letters Shoud Be Granted

by Stephen Bilkis

On 28 October 2006, the decedent died leaving a will dated 27 April 2006. The will nominates two (2) executors. Thereafter, one of the executors renounced his appointment. The decedent was survived by his two adult children.

Under the will, the entire residuary estate is left to the decedent’s companion and the decedent’s children are disinherited. One of the named executors (petitioner) now petitions for preliminary letters testamentary.

The primordial issue (in the estate litigation) is whether or not the petition for preliminary letters should be granted.

Published on: March 27, 2012

Daughter Brings Will Contest Action Against Estate

by Stephen Bilkis

This is a summary proceeding case involving the public administrator of New York versus the respondent who was one of the heirs of the decedent. The facts of the

case states that the decedent died in 1977 leaving a will. In that will, the house and lot was devised to one of the daughters and the other two children that includes the herein respondent were allotted legacies in the form of bank account of their testator-father. It turned out that there were no more deposits in the said bank accounts and the only property left by the decedent was the house and lot which was allotted to just one daughter. The two daughters that included the respondent in effect did not inherit anything.

The daughter who inherited the entire estate of the decedent died on September 2000 without leaving a will. The court issued letters of administration to the public administrator who is now the petitioner in the case, for the legal disposition of the daughter’s properties and assets which included the estate of her father. In 2008, the respondent filed objections to the probate of the will of her father alleging that the said will is a forgery and that there was an earlier true will that was made by her decedent father. Notwithstanding the objection of the respondent, a New York Probate Lawyer said the proceedings continued and the house and lot originally coming from the decedent father was sold in June 18, 2010. After the house and lot was sold, the public administrator filed a petition for the final accounting of the proceeds of the sale as well as the finalization of his duties in this particular issue.

Published on: March 25, 2012

Court Decides Estate Issues Regarding Same Sex Marriage

by Stephen Bilkis

The deceased man endowed in his will his three surviving brothers, a goddaughter and his same sex partner spouse that he married in Canada. He left the residue of his estate to the respondent, his same-sex partner spouse. The deceased man appointed the respondent spouse as the executor of his will, the said will included a no-contest clause which threatens anyone who challenges the legality of the will shall be eliminated. The respondent, as the executor named in the will, filed a petition for probate in the Surrogate’s Court. The respondent identified himself as the deceased man’s surviving spouse and the sole successor. The respondent served the beneficiaries with notice of validation and the Surrogate’s Court issued a ruling granting validation.

On January 26, 2009, the Surrogate’s Court issued an opinion finding that the respondent was indeed the deceased man’s surviving spouse and sole successor. In regard with such findings, citation of the validation proceeding need not be issued to anyone. The court found that the deceased man’s same-sex marriage to the respondent was valid under the laws of Canada, where it was performed. The said marriage did not fall into either of the two exceptions to the marriage recognition rule, as the marriage was not affirmatively prohibited or proscribed by natural law. Accordingly, the Surrogate’s Court found that the marriage was entitled to recognition.

The appellant alleges that the court was not in jurisdiction to grant the validation proceeding without having been issued with citation being the deceased man’s surviving siblings.