Westchester County

Published on: November 3, 2012

Court Looks at the Intent of the Decedent

by Stephen Bilkis

Establishing the jurisdiction that will handle a probate action in a New York Probate Court sometimes requires the knowledge of the decedent’s entire residential history. Just because a person dies in one county does not mean that the probate should be handled by that county. Probate in New York Law is handled by the jurisdiction that the decedent lived in for the ending years of their life. A New York Probate Lawyer said that address must be a voluntary residence and not necessarily a nursing home or hospice where the person resided toward the end of their lives. In New York law, it is referred to as a domicile. A domicile is existing until a new one is set up. A person moves from one domicile to another throughout their lives. The primary element in establishing a domicile is intent. Sometimes, the evaluation of residential change and intent to move can be blurry.

In one case, a woman who was born in Odessa, Russia in 1898, moved to Brooklyn, New York sometime around 1911. She was married and lived as an American citizen for the remainder of her life. She and her husband purchased a home on Beaumont Street in Manhattan Beach in Brooklyn, New York shortly after their marriage. They lived in that house and raised their family to adulthood in that house. In 1989, she began to have medical problems. During that year and the one that followed, she spent most of her time in hospitals or nursing homes. On December 6, 1990, she was a resident patient at Beth Israel Hospital in Manhattan. She died on that date. For three months before she died she had lived in a nursing home in Bronx County.

Her family had sold her home in Manhattan Beach during her long illness. The court was required to determine if she was considered a resident of Bronx County or a resident of Brooklyn. An additional complication was that she died in Manhattan. The court must evaluate which county was the woman’s domicile at the time of her death. They determined that it would not be appropriate to determine that she was a resident of Manhattan since her stay there was too short. A Westchester County Probate Lawyer said the question remains as to whether she has a domicile in the Bronx, or Brooklyn. The argument that is most important in this particular case involves that of intent. Did the woman have the intent to sell her lifelong domicile in Brooklyn and establish a new domicile in the Bronx prior to her death? The court must try to determine what the woman’s intent was at the time that her home was sold.

Published on: November 1, 2012

Petitioner Claims Will Not Valid

by Stephen Bilkis

An instrument alleged to have been executed in December of 1955 by the decedent is being offered for probate in the Surrogate’s Court of Queens County. The instrument names an executor and an attorney and draftsman as well.

Case Background

The decedent passed away in April of 1957. She was survived by her sister to whom she left $500 and the right to be buried in her plot. The decedent left $200 to a former employee. The rest was given to a “dear friend.” The estate has an estimated worth of $5,500.

Published on: October 21, 2012

Court Decides if Formal Accounting Necessary

by Stephen Bilkis

This case deals with the accounting of Leif I Rubinstein as the executor of the estate of William Gillett who is deceased. The case is being held in the Surrogates Court of Suffolk County. This is an executor’s account proceeding (estate administration) where the attorney fiducia is requesting nunc pro tunc approval for the payment that he made to himself for the legal services that he provided on behalf of the decedent’s estate. He did not have judicial authorization to make the payment. He is also seeking approval of disbursements that he made.

Case Background

Jurisdiction has been obtained over the parties for this proceeding and they have each executed waivers of service of process and have consented to granting the relief that has been requested.

Published on: October 17, 2012

Testatrix Leaves Her Estate to a Wildlife Sanctuary

by Stephen Bilkis

This case is being heard in the Suffolk County Court. The matter at hand deals with an application made by the American Museum of Natural History. The application requests a refund of certain taxes that the museum paid under erroneous and illegal assessments that were made.

The American Museum of Natural History is trying to recover certain taxes that they have paid or taxes that were paid on their behalf on certain real property that is located in the Town of Huntington. A New York Probate Lawyer said the refund claim is based on the ground that the property should have been tax exempt under provisions of the Tax Law.

Case Background

Published on: October 16, 2012

Court Looks at Stipulation of Settlement Agreement

by Stephen Bilkis

The Facts of the Case:

A New York Probate Lawyer said on 24 September 2008, the decedent died a resident and domiciliary of Nassau County. In November 2008, “A” filed a petition seeking a decree awarding her letters of administration. In the proceeding, “A” identified herself as the decedent’s wife. Annexed to the petition was an affidavit of heirship by a certain person, who swore therein that the decedent was married to the petitioner at the time of his death, and that the decedent died without children and without a will. On 25 November 2008, a decree of administration was issued and letters of administration to “A”.

Thereafter, “B”, as the named executor and one of the decedent’s siblings, filed a petition for probate of an instrument (a will contest proceeding) propounded to be the decedent’s last will and testament and for the issuance of letters testamentary. The petition identifies “A” as the decedent’s spouse, but states that the decedent was separated from “A” at the time of the decedent’s death; that the decedent died leaving 10 siblings. “B” and one other sibling of the decedent also instituted a proceeding seeking an order revoking letters of administration issued to “A”, and compelling her to account.

Published on: October 1, 2012

Court Reviews Alleged Fraudulent Acts by Fiduciaries

by Stephen Bilkis

This is a case being heard in the Surrogate’s Court of Suffolk County. The case involves the will of Madeleine Daltrolff Corya, who is deceased. The case is an accounting proceeding where the co-petitioners, the attorney – draftsman and the Bankers Trust Company have requested that the court fix and determine the fee and disbursements of the attorney’s law firm in the amount of $250,000 and to fix and allow the combined commissions for the total amount of $1,634,230.40. The counsel has requested a hearing be held in respect to this application for fees and disbursements.

Case Background

The decedent passed away in April of 1987 and is survived by a grand nephew. The decedent bequeathed her entire estate, which amounted to approximately $46 million at the time she passed away, to two charitable organizations, the American Cancer Society and Memorial Hospital for Cancer and Allied Diseases of New York. Her attorney, John J. Barrett and the Bankers Trust Company of New York were named as executors of the will.

Published on: September 13, 2012

Court Rules on Full Faith and Credit Act of the Constitution

by Stephen Bilkis

This matter deals with Howard E. Bennett, who is also known as Ward Bennett and is deceased. The appellant in the case is David White. Robert Middleton, et al is the respondents in this matter. The case is being heard in the Supreme Court of the State of New York, Appellate Division, and Second Judicial Department.

A New York Family Lawyer said the the petitioner, David White is appealing an order that was made in the Surrogate’s Court of Suffolk County made on the 21st of December, 2009 that granted the motion of Andrew Sabin for leave to intervene in the proceeding and revoked his ancillary letters testamentary and an order from the same court that was made on the 24th of June, 2010 upon renewal and re-argument of the case adhered to the original determination made in the December 21st decision.

Case Background

Published on: August 1, 2012

Daughter Contests Father’s Will

by Stephen Bilkis

In a proceeding, a daughter of a deceased man filed a motion for a decision without trial and objected the petition for probate of her father’s will. The petition was brought by the sister of deceased man and the nominated estate administrator under the last will and testament.

The last will and testament of the deceased man was offered for validation. In his will, the man directed that his entire estate be distributed to his sister. The document reflects that the attesting witnesses were the draftsperson of the will and the draftsperson’s legal assistant. The daughter however filed multiple objections to the will, focusing primarily on an alleged lack of due implementation. The daughter’s counsel examined the two attesting witnesses.

The motion requesting the decision without trial upon objections for the validation of the will and dismissal of the proceeding was followed a lengthy delay in which a settlement was reached concerning payment of the deceased person’s non-probate death benefits, however no settlement was reached in connection with the distribution of the deceased person’s property. In the daughter’s affidavit, she alleges that her aunt cannot appropriately demonstrate due implementation of the proposed last will and testament. In support for the statement, the daughter presents that the one witness cannot recall the will signing ceremony, that the self-proving affidavit was improperly notarized, that the her father failed to initial each page of his will and the proponent’s counsel did not produce her for examination.

Published on: July 29, 2012

Court Says Testator has Right to Choose Who Settles Their Estate

by Stephen Bilkis

In a probate proceeding, a New York Probate Lawyer said that the petitioner, Joanne Zaccaria, appeals from so much of a decree of the Surrogate’s Court, Kings County, denied that branch of her cross motion which was for the issuance of preliminary letters testamentary to her for the estate of Paula M. Venezia, and granted those branches of the motion of the objectant, Edward Hayes Pennington III, which were to deny the issuance of preliminary letters testamentary to the petitioner for that estate, to disqualify the petitioner from service as executrix, and to issue letters of administration to Edward Hayes Pennington III.

The issue in this case is whether the Surrogate Court in this probate proceeding erred in denying petitioner’s cross motion for the issuance of preliminary letters testamentary on the estate of the testator, and granted that branch of the motion of the objectant, Edward Hayes Pennington III, to issue letters of administration to him.

The Court reversed the decision insofar as appealed from, on the law and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Surrogate’s Court, Kings County, for an evidentiary hearing in accordance herewith, and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the appellant from service as executrix, and to issue letters of administration to Edward Hayes Pennington III.

Published on: July 24, 2012

Court Decides Payment of Estate Taxes

by Stephen Bilkis

A woman died and was survived by her five children. Her will, dated September 1, 2006 was admitted for probate on July 2, 2010 and letters of estate administration was issued to one of her children. The Will established a credit shelter trust for her husband, with remainder to her children. It left the rest, residue and remainder of her estate to her husband outright. Her husband predeceased her and she provided in the Will that if her husband predeceased her, she will left all the rest, residue and remainder of her properties, real, personal and mixed and wherever situated to her elder daughter. All the rest and remainder are to be equally divided among her children.

A New York Probate Lawyer said the estate is sufficiently large to generate a New York State estate tax. The will provides that all estate, inheritance, transfer, succession or other similar taxes shall be payable out of the residuary of the estate. The executor asks that the Court construe the gift to real property as a pre-residuary gift and the remainder clause of the Will as the residuary estate. The executor brings the construction proceeding, since he claims that not all of the residuary beneficiaries agree with his interpretation.

The Will in question directs that the payment of estate taxes be paid from the residuary estate. The Will contest claims that the Will contains two residuary clauses. Westchester County Probate Lawyer said the executor asks the Court to construe one of the residuary clauses as the true residuary estate. The effect will be that all estate taxes will be apportioned among the beneficiaries of the residuary clause and the devise of real property under the other residuary clause will pass to the devisee free of New York estate taxes. No objections have been filed to the petition for a construction, although the executor states that not all of his siblings agree with his interpretation.