New York City

Published on: September 26, 2013

Court Rules on Letters of Testamentary

by Stephen Bilkis

This is a probate proceeding which has been pending since January 15, 1973. The decedent died and was survived by a husband who was alleged to be incapacitated and who was named as her executor and sole beneficiary in her will.

A New York Probate Lawyer said in connection with the right to letters testamentary, the court rendered a decision directing the issuance of letters testamentary to the petitioner, who was one of the two substituted co-executors, directing him to file an accounting complying with Rule of the court.

Subsequently there were numerous letters from the various parties interested in this estate but nothing was done either by the petitioner or his then attorney to comply with the decision of the court.

Published on: September 25, 2013

Court Rules on Will Modification

by Stephen Bilkis

A woman died and survived by her two adult children. Her son is married and had two children. Her daughter is the nominated administrator of her last will, as well as the complainant in this matter.

The last will was offered for probate. A New York Probate Lawyer said but, it was not drafted by an attorney nor was its execution supervised by an attorney. The last will appears to be a form on which information was inserted by typing. It is signed by the testator and three attesting witnesses. An acknowledgment of the testator’s signature was also taken by a notary public at the time of the implementation. Consequently, the file offered for validation also contains strike outs, erasures and handwritten interlineations. The alterations were apparently made by the testator.

The originally typed last will direct that the property of the woman will be given in the manner of partition. A New York Will Lawyer said it is stated that her daughter shall receive 50% of all investments & monies, such as bank accts, stocks, bond, etc.

Published on: September 24, 2013

Court Rules on Setting Fees for Legal Counsel of the Executor

by Stephen Bilkis

A New York Family Lawyer said in this uncontested accounting proceeding are the issues of the fees of counsel for the executor, accountant’s fees and reimbursements to the executor of sums advanced by the counsel.

A woman died as resident of Massapequa, New York. She was survived by her son, the petitioner and her daughter. Her will of September 30, 1970 and a codicil thereto dated June 22, 1972 were admitted to probate and letters testamentary were issued to the petitioner. A codicil is a document that amends, rather than replaces, a previously executed will. The decedent’s will provides that the residuary estate be divided equally between the two children but the daughter, if unmarried, will be given a two year right to occupy the decedent woman’s Massapequa home provided she pay real estate taxes. The decedent’s daughter resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

A New York Will Lawyer said as with any request for a fee, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate regardless of a retainer agreement. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate Court is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

Published on: September 24, 2013

Court Discusses the Surrogate’s Court Protection Act

by Stephen Bilkis

A New York Probate Lawyer said the decedent woman died leaving a will dated April 5, 1999 (the 1999 will) and two prior wills dated June 5, 1998 (the 1998 will) and November 26, 1997, all of which were filed with the court. All three wills nominate the decedent’s sister and the decedent’s nephew as co-executors.

The 1999 will provide that the decedent woman’s residuary estate shall be distributed 50% to her sister and 50% to her nephew and his wife. A New York Will Lawyer said that th 1998 will, however, provides that 50% of the residuary estate will be distributed to her sister, 25% to her sister’s son and his wife, and 25% to her nephew and his wife. All of the wills contain an in terrorem clause and dispense with the filing of a bond. An in terrorem clause is a provision in a will which threatens that if anyone challenges the legality of the will or any part of it, then that person will be cut off or given only a dollar, instead of getting the full gift provided in the will.

Manhattan Probate Lawyers said the petition filed with the court, the decedent’s nephew offered the 1999 will for probate. The decedent’s sister, although named in the 1999 will as a co-executor has failed to join in the petition. Thereafter, by petition filed with the court, the sister applied for preliminary letters testamentary based upon her nomination as co-executor under the 1998 will. In her prayer for relief, the sister asked that preliminary letters issue solely to her alleging that the nephew has made no attempt to have a preliminary appointment made in the matter. By petition, the decedent’s nephew petitioned for preliminary letters testamentary based upon his nomination as co-executor under the 1999 will. The nephew requests that preliminary letters issue solely to him since the decedent’s sister may object to admission of the 1999 will to probate because her son would receive a portion of the residuary estate under the 1998 will.

Published on: September 23, 2013

The issue in this case is whether the surrogate court erred in directing a guardian ad litem to commence a proceeding on his ward’s behalf.

by Stephen Bilkis

A New York Probate Lawyer said that, in this uncontested probate proceeding, the petitioner, the decedent’s surviving spouse who is the nominated executor, the sole residuary beneficiary and the trustee of the Article SIXTH trust under the offered instrument. Upon motion of petitioner, this matter was transferred to this court by order of the Surrogate’s Court, New York County dated June 26, 2006. The decedent died on March 17, 2006 survived by his wife and his two adult daughters by his prior marriage. One daughter is an incapacitated person who has been deaf, blind and mentally retarded since birth.

A New York Will Lawyer said that, under the propounded instrument the decedent provided for a $500,000 trust for his incapacitated daughter, remainder to her sister or her issue. The will also provides a specific bequest of $1,000,000 to his daughter. According to the application for preliminary letters testamentary, the size of decedent’s gross estate is approximately $52,000,000. The daughter has appeared by counsel in this proceeding and indicated she has no objection to the will.

A Nassau Will Contest Lawyer said that, the guardian ad litem for the incapacitated daughter appointed by this court has filed his report. The guardian ad litem concludes that jurisdiction has been obtained over his ward. The guardian ad litem further concludes that after his investigation of the circumstances of the drafting and execution of the will, that there are no grounds for objecting to the instrument for failure of due execution, no evidence of mental disability or lack of testamentary capacity of this decedent nor any indication of the exercise of undue influence by anyone. Thus, he concludes no basis exists to deny probate to the propounded instrument. However, the guardian ad litem does report to the court concerning a property settlement agreement dated January 20, 1952 between the decedent and his former spouse. The agreement was incorporated into an interlocutory judgment of divorce entered March 3, 1952 in the Los Angeles County Superior Court of the State of California. In pertinent part the agreement provides in paragraph 17 thereof: “17. Husband agrees that he will by testamentary disposition leave not less than one-half of his net estate, after payment of debts and taxes, to his daughters in equal proportions.”

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 19, 2013

Court Discusses Proving Testamentary Capacity

by Stephen Bilkis

A New York Probate Lawyer said that, in this contested probate proceeding, the proponent, moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the propounded instrument dated March 19, 2003 to probate. The objectant is the son of the decedent. The propounded instrument nominates the proponent as executor. The decedent, died on August 8, 2006, at the age of 88, survived by two children. Decedent and his wife of 42 years were divorced on January 8, 2004. The will offered for probate bequeaths substantially all of decedent’s assets to Perry to the exclusion of Nils. The decedent had as many as six wills, all but one of which (March 31, 2001) excluded Nils from decedent’s estate.

A New York Wills Lawyer said that, in 1954, the decedent founded a company in the business of the distribution of airplane parts and accessories. Decedent was the sole shareholder. Both the decedent’s children were employed by the company. In 1995, the first son’s employment was terminated and thereafter, he and decedent were estranged. On April 12, 2002, pursuant to a stock purchase agreement, the decedent sold his stock in the company to his son who executed a note for $9,600, 000, representing the purchase price of 80% of decedent’s shares. The remaining 20% of the stock was gifted by decedent to his son. Prior to the stock sale, decedent transferred substantial assets to his wife.

A Nassau Estate Litigation Lawyer, the objectant has interposed the following objections to the propounded instrument: lack of testamentary capacity, lack of due execution, fraud, and undue influence. In support of the motion to admit the will to probate, the proponent submits his own affidavit, the deposition testimony of witnesses to the will, the affidavits of employees of the company, the company’s accountant, the wife’s attorney an associate in proponent’s law firm. Various documentary evidence was also submitted.

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 8, 2013

Petitioner Moves for Summary Judgment in Will Contest Proceeding

by Stephen Bilkis

This is a probate proceeding wherein petitioner, A, moves for summary judgment pursuant to CPLR 3212 dismissing the objections to probate of the respondent, B, and admitting into probate the last will and testament of the decedent dated 7 April 1997 and a codicil dated 2 August 2006.

The court grants the motion in its entirety.

A New York Probate Lawyer said the decedent, C, died on 31 October 2010. C was survived by her husband, A, the petitioner, and by her two sons: B, the respondent, and D.

Published on: September 7, 2013

Court Reviews Details of Final Accounting

by Stephen Bilkis

Before the court is the first and final account of A as ancillary executor of the estate of B; an estate litigation. The court is asked to approve attorney’s fees, commissions, reimbursement of expenses for the estate administration and the settlement of the account.

A New York Probate Lawyer said on 3 May 2004, the decedent, B, died. B left a will dated 13 February 2001. At the time of her death, the decedent was domiciled in Florida. Ancillary letters testamentary issued to A on 18 July 2005. The accounting covers the period 3 May 2004 to 21 April 2009. An amended accounting covering the period 3 May 2004 to 22 December 2009 was filed on 5 February 2010. The amended accounting shows principal charges to the accounting party of $829,804.35. C, a $10,000.00 legatee and the beneficiary of fifty percent (50%) of the residuary estate filed objections to the accounting and the amended accounting. The ancillary executor is the beneficiary of the other fifty percent (50%) share of the residuary estate. By instrument dated 2 December 2010, C withdrew his objections to both the first account and the amended account.

A New York Wills Lawyer said with respect to the issue of attorneys’ fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate as held in Matter of Stortecky v Mazzone, Matter of Vitole and Matter of Phelan. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily as was also held in Matter of Brehm and Matter of Wilhelm.