Suffolk County

Published on: September 22, 2013

Court Decides Guardian Ad Litem Fee

by Stephen Bilkis

A New York Probate Lawyer said that, this is a proceeding by the trustee and as executor of the estate of deceased and as trustee, of the “Second Share” Trust under Article NINTH of the Last Will and Testament of the deceased to settle their account as trustees of the “Second Share” trust under Article NINTH of the will. The account covers the period March 31, 1986 through December 31, 2008. The trustees also filed a supplemental account covering the period January 1, 2009 through September 30, 2010. This is the trustees’ first and final account. The summary statement shows principal charges to the accounting party of $25,950, 272.00. A guardian ad litem was appointed to represent the interests of the minor grandchildren of the deceased.

A New York Will Lawyer said that, the decedent, died on September 28, 1985, a resident of Nassau County, leaving a will dated September 13, 1984, which was admitted to probate by decree of this court dated November 12, 1985. In Article NINTH of her will, the decedent directed that her residuary estate be divided into two equal shares, and she directed that the second such share be held in trust for the primary benefit of her son, and his issue. Pursuant to the terms of the trust, during her son’s lifetime, the trustees had the discretion to pay the net income to any one or more of her son and his issue. The trustees also had the discretion to distribute to the same class of persons such amount from principal as they deemed “wise and proper to provide for comfort, support, maintenance, education or general welfare.” The will provides that the trust shall terminate upon her son’s death. In addition, the decedent will give the deceased son a limited testamentary power of appointment over the remainder of the trust which he may exercise in favor of any of his lawful issue or lawful issue of the decedent.

A Nassau Probate Lawyer said that, in Article FOURTEENTH of her will, the decedent named the parties as trustees of the trust for the deceased son and authorized each to name his or her successor. One party renounced his nomination to act as trustee. Letters of trusteeship issued to the other remaining two parties on November 12, 1985. On July 23, 1986, this court issued letters of successor trusteeship to the trustees to act as his successor and resigned effective upon appointment.

Published on: September 21, 2013

Court Discusses Validity of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, this is an application brought on by the administrator through an order to show cause to restrain certain corporations in which this estate owns shares from transferring such stock on the authority of a person to whom letters testamentary have been issued by another court. Before the court made its decision of August 12 1968, a hearing was held on the question of the decedent’s domicile. This was after an earlier hearing showed that proceedings purportedly brought by the proponent in this court based upon a copy of process served by her attorney to probate the alleged will of the decedent were abandoned. Instead of filing it here, the will was sent to St. Croix, Virgin Islands, by the attorney for the proponent.

A New York Will Lawyer said that, as pointed out in the earlier decision, the proponent’s attorney participated in the hearing in this court on her behalf on the issue of domicile; he cross-examined the witnesses and himself testified for his said client on that issue. However, only a copy of the will was exhibited here and it appears that proponent at some time, either pending determination of the proceedings in this court, or later, did file the will in the Virgin Islands Territorial District Court at St. Croix where it has since allegedly been admitted to probate. This court has not been given any copy of the papers and proceedings conducted there but it does appear that the St. Croix proceedings were pro forma and without a hearing or on notice or process (except possibly publication) served upon the decedent’s grandson. It also appears that the St. Croix proceedings were probably instituted by proponent in violation of this court’s injunction as set forth in the aforementioned decision and subsequent order thereon, copies of which were duly served upon her attorney.

A Westchester County Probate Lawyer said that, after the prior hearings and after the order was entered on the decision of August 12, 1968, the proponent filed a notice of appeal in this court on September 18, 1968, appealing that decision and order to the Appellate Division of the New York Supreme Court. This appeal has not been perfected. She was then given an opportunity on due notice and on due process served upon her, issued out of this court, to prove the validity of the will in her possession or to show cause why the estate should not be administered under the jurisdiction of this court by the grandson as administrator. Upon her default and failure to come forward, this court had no alternative but to conclude that such proof was not available and it accordingly appointed the grandson as administrator.

Published on: September 18, 2013

Court Decides if the Account of the Public Administrator Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Uniondale, on December 26, 1998. Decedent left a will dated June 15, 1979 which bequeathed her entire residuary estate to her nephew, who post-deceased the decedent. The Public Administrator was appointed temporary administrator of the estate on April 14, 2005. Decedent’s will was admitted to probate by a decree of this court dated May 11, 2010 and letters of administration c.t.a. were issued to the Public Administrator on that date. The account of the Public Administrator was initially filed on July 6, 2010.

A Nassau Probate Lawyer said that, the account filed by the Public Administrator shows the receipt of $87,102.28 of estate principal, which was supplemented by income collected totaling $4,935.98. This resulted in total charges of $92,038.26. This amount was reduced by administrative expenses through April 30, 2010 in the amount of $68,155.17, leaving a balance of $23,883.09 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the court appointed administrator of the estate of the decedent’s nephew. In addition, the court must release the administrator from the surety bond.

The issue in this case is whether the account of the Public Administrator should be granted.

Published on: September 5, 2013

Court Finds Decedent’s Testamentary Capacity is in Question

by Stephen Bilkis

This case is contested probate proceeding brought to the court by the nephew of the decedent, A. Objectant moves for an order pursuant to CPLR 3212 granting summary judgment denying probate to the two propounded wills dated 19 October 2001. A New York Probate Lawyer said the proponent, B, cross moves for summary judgment dismissing the objections and admitting the propounded instruments dated 19 October 2001 to probate. The objectant has interposed his objections to the propounded instruments alleging undue influence and lack of testamentary capacity. Objectant also seeks to disqualify B as executor of the estate pursuant to SCPA 707.

On 19 December 2001, decedent C died. He was survived by five brothers and sisters and nieces and nephews of predeceased siblings. Proponent B petitioned for probate of two instruments dated the same day, 19 October 2001. Both instruments contain the names of L, M, and N as the attesting witnesses and O, notary, with a stamp and signature.

Both instruments nominate B as executrix; one of them nominates D as successor. Both instruments divide the estate equally between D and B.

Published on: September 2, 2013

Court Determines Legal Fees in Estate Litigation

by Stephen Bilkis

In this Estate Litigation, the decedent, died in October 1999. Her will on 1997 was admitted to probate in April 2000. Letters testamentary issued to the decedent’s son. The son died in May 2002. Following his death, successor letters testamentary issued to the administrator in June 2002.

A Nassau County Estate attorney said that under Article THIRD of her will, the decedent bequeathed her residuary estate to her surviving issue subject to trusts created under Articles FOURTH, FIFTH and SIXTH. The decedent was survived by her son, a daughter, and a granddaughter, who is the daughter of the decedent’s predeceased daughter. Pursuant to the will, the share for the decedent’s son was set apart for his benefit in trust to be administered in accordance with the provisions of Article FOURTH. Letters of trusteeship issued to the son and another as trustees of the Article FOURTH trust. Pursuant to the terms of the trust for son, the trust terminated upon the son’s death and the then principal and income became payable to his surviving issue, subject to further trusts for any such issue under the age of thirty-five.

A New York Probate Lawyer said the son was survived by two children who are under the age of 35 and, therefore, separate trusts were created for the benefit of each pursuant to Article SIXTH. Letters of trusteeship issued to the daughter as trustee of the trusts for the benefit of the son’s children.

Published on: August 17, 2013

Court Suspends Letters of Testamentary

by Stephen Bilkis

A man died leaving a last will and was subsequently admitted to probate. The letters testamentary was issued to the deceased man’s youngest son. Still, the last will bequeath the man’s residuary estate equally to his three sons.

A New York Probate Lawyer said in the court suspended the letters testamentary and issued the new one to the deceased man’s middle son. In addition, the matter was scheduled for a hearing on the issue of removing the youngest son as the administrator.

Prior to the proceeding, the youngest son made a motion to disqualify his brother’s attorney. Then, the parties entered into a written condition resolving the various issues. A New York Will Lawyer said the stipulation provided that the deceased man’s middle son would withdraw his motion against his younger brother and for an accounting. On the other hand, the youngest child would withdraw his motion with regards to the law firm disqualification.

Published on: July 27, 2013

Court Decides Executrix Commissions

by Stephen Bilkis

n a proceeding for ancillary probate of the will of decedent, which will, it is alleged, has been admitted to probate in the Republic of Mexico, the nation in which decedent was domiciled at the time of his death. The application indicates that decedent possessed real property in both Bronx County and Westchester County.

A New York Probate Lawyer said that petitioner has advised the court that he initially sought to obtain ancillary letters from the Surrogate’s Court, Westchester County. However, when the staff of that court indicated to him that they would require additional documents, he opted to abandon proceeding before that court and to seek relief in Bronx County.

The court does not reach the merits of the application. There is no question that, ab initio, petitioner could have proceeded in either county. However, petitioner having exercised his option to proceed in Westchester County, it would constitute an inappropriate countenancing of forum shopping for this court to now entertain the instant application.

Published on: July 25, 2013

Court Rules in Will Contest Action

by Stephen Bilkis

A New York Probate Lawyer said this is an action pursuant to Article 15 of the Real Property Law to compel the determination of claims to certain real property located at Bronx, City of New York. The plaintiff seeks a decree that she is entitled to the title of said premise as against all of the defendants and every person claiming under them. She contends that she is the sole owner in fee of the property entitled to possession of the premises and that she has a good and marketable title acquired by adverse possession.

A Bronx County Probate attorney said that plaintiff acquired title by deed of conveyance from the adminstratrix of herein deceased. Plaintiff is now in possession of the property and occupies same. The defendant, the plaintiff’s grantor, acquired her title by deed of conveyance from her husband in March 1932. Defendant administratrix was in possession until the sale of the property to the plaintiff.

Decedent obtained title to these premises by virtue of a deed from Rosa Belle Christian, his first wife, dated January 16, 1931.

Published on: July 3, 2013

Court Discusses Public Policy Concerns Regarding Rent Stablization

by Stephen Bilkis

A New York Probate Lawyer said this is an action for breach of an illegal oral contract to issue plaintiff a rent-stabilized lease and lease renewals, in perpetuity. The complaint filed in April 2004 asserts a right to a renewal lease under a tenancy created by a purported 1992 verbal agreement with defendant landlord’s principal. Plaintiff allegedly paid $50,000 in consideration of “his understanding and agreement that he would have the right to remain in the apartment for as long as he cared to rent it,” in apparent disregard of whether the apartment was to be used as his primary residence. Defendant alleges that plaintiff maintains his primary residence in Florida.

A New York Estate Litigation Lawyer said that, defendant previously brought a holdover proceeding on non-primary residence grounds, which had been pending in Civil Court for two months when plaintiff commenced this action alleging breach of the parol agreement and seeking specific performance and monetary damages of $500,000. A New York Estate Litigation Lawyer said that, plaintiff’s first cause of action seeks specific performance and a permanent injunction against his eviction. The second and third causes of action allege breach of the 1992 oral agreement and seek monetary damages of $500,000 against defendants, respectively, for failing to offer plaintiff a renewal lease in January 2004 and for refusing to extend the term of the lease. The fourth cause of action seeks recovery of the $50,000 paid by plaintiff in 1992, asserting that such payment constitutes an illegal rent overcharge.

A Westchester County Probate Lawyer said that, in the pending Civil Court holdover proceeding to recover possession of the subject dwelling unit, defendant alleged that plaintiff does not use the premises as his primary residence and, apparently, never has. However denominated, the present action seeks to impose upon defendant the obligation to continue the statutory tenancy indefinitely. Because the right to lease renewal can be adjudicated in the Civil Court proceeding and because it is dispositive of the asserted breach of contract, the complaint was properly dismissed on the ground that there is another action pending.

Published on: June 26, 2013

Court Decides Suit Regarding Family Trust

by Stephen Bilkis

The document sued upon is a Family Trust.

On 19 May 1999, a Family Trust, a revocable inter vivos trust, was created. It is a 29-page document with nine articles. A, the settlor, is the mother of plaintiff and defendant. A, and her husband, B, are the co-trustees.

A New York Probate Lawyer said that according to the Family Trust, its purpose is to hold property, which was attached to and made part of the agreement, together with such monies, securities and other assets as the trustee may thereafter at any time hold or acquire (said monies, securities and other assets, referred to collectively as the “Trust Estate”) for the purposes of providing income to the settlor during her lifetime, paying her funeral expenses, estate taxes, probate fees, legal and accounting fees related to her estate, satisfying any cash bequests, all inheritance taxes, funding a marital share deduction, providing income for the benefit of her husband or their children during her husband’s lifetime and upon his death, paying the balance of the Trust Estate to their children, per stirpes. Further, the Family Trust agreement provided that if A died, the balance of the Trust Estate would be distributed to her husband if he survived her, and that upon his death, or the settlor’s death if her spouse predeceased her, the trustee would pay the balance of the Trust Estate to the settlor’s children, per stirpes.