New York City

Published on: May 29, 2014

Defendant Appeals Judgment from Foreclosure Proceeding

by Stephen Bilkis

A New York Probate Lawyer said in an action transferred to this court from Supreme Court, Nassau County, defendant, a house loan corporation, one of several defendants, moves the court for an order dismissing the complaint as against it. Plaintiffs oppose Countrywide’s motion and cross-move for summary judgment dismissing Countrywide’s answer, or, in the alternative, striking Countrywide’s fourth and seventh affirmative defenses.

A Nassau County Estate attorney said that this action emanates from a foreclosure proceeding involving property located at Hempstead, New York. That property was owned by an individual who died intestate in July 1986. Her brother administered her estate as voluntary administrator pursuant to SCPA Article 13. It appears, although it is not entirely clear, that the sole distributee and that the subject property vested in him immediately upon his sister’s death. The other then died testate on June 9, 1994. Th deceased was appointed the voluntary administrator of the estate.

A New York Will Lawyer said the court’s file contains the original will which devises and bequeaths all of his property to his cousin who died in August 2000. There was no deed executed from the estate of the first decedent to the second, nor was there a deed from the estate to the deceased executor. Although the original will was filed in the court incident to the voluntary administration of the estate of the second decedent, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the decedent, the administrators of his estate, and claim to be his only distributees.

Published on: May 28, 2014

Court Hears Petitioner’s Application for Certificate of Letters of Administration

by Stephen Bilkis

A New York Probate Lawyer said that, this is an application for a certificate of letters of administration, which involves a question as to the status of the county treasurer as administrator, on which question there appears neither direct statutory provision nor decision directly in point.

A Nassau Estate Lawyer said that, on June 23, 1960, the County Treasurer of Nassau County, was appointed administrator of this estate. On January 11, 1962, his term of office as county treasurer expired, and on February 5, 1962, the County treasurer, by his attorneys, requested a certificate of letters of administration in this estate.

A New York Probate Lawyer said that, on February 6, 1962, this court issued a decision in which it held that the present county treasurer, was interested in this matter, and directed that he be brought into this application. Subsequently, on February 9, 1962, the present county treasurer, by his attorney, filed a notice of appearance in which he opposed the issuance of the certificate of letters to the former treasurer and asserted that he, the present treasurer should be appointed successor administrator of this estate, and that he would petition for such appointment if the application of the former treasurer were denied. The application was submitted for determination, and both sides have submitted memoranda of law.

Published on: May 26, 2014

Family Member Files Objections to Accounting in Estate Proceeding

by Stephen Bilkis

A New York Probate Lawyer said the decedent died in May 2004, leaving a will which was admitted to probate. The decedent was survived by his four children. The will makes pre-residuary cash bequests of $45,000.00 to each of the children. The will further provides that the decedent’s residuary estate be divided equally among his four children. Letters testamentary issued to petitioner in July 2004.

A Nassau County Estate lawyer said that Petitioner originally filed a First and Final Accounting of his proceedings covering the period May 2004 through January 2008. Thereafter, he filed a First Interim Account of the Estate of the decedent. This document covers the period from May 2004 to January 2008, the same period covered by the First and Final Accounting. The Interim Account was verified by Petitioner in February 2009, nearly one year after the First and Final Account.

A New York County Will Lawyer said the brother filed objections to the accounting. The parties stipulated at trial that the estate had the burden of proof on the issue of whether the decedent made a loan to the brother. In addition, the parties acknowledged that petitioner took an advance payment of commissions in the amount of $10,0000.00, without prior court order and repaid the sum of $10,000.00 to the estate.

Published on: May 25, 2014

Administrator Moves to Dismiss Petition by Two Creditors

by Stephen Bilkis

In this miscellaneous proceeding, the respondent, administrator de bonis non, moves to dismiss the petition by two alleged creditors for revocation of his letters pursuant to CPLR 3211 (a) (2) and (3).

A New York Probate Lawyer said that the decedent died in April 1939, intestate. The decedent was the writer of some classic songs. He was survived by his wife and his father. Pursuant to the law of intestacy applicable at the time of the decedent’s death, the survivors were the decedent’s only distributees. In May 1939, the wife was appointed administrator of the decedent’s estate. She died in November 1973, a resident of New York County. She left a last will and testament which nominated executors. The first executor died in January 1983 leaving a will. Letters testamentary in his estate issued to his co-executor.

A New York Will Lawyer said the respondent, who alleges that he is a grandnephew of the decedent, petitioned for letters of administration de bonis non with respect to the decedent’s estate by petition dated September 21, 2009. The petition filed by him in the administration proceeding recites that the decedent had eight brothers and sisters who were deceased and that five nephews/nieces and seventeen great-nephews/great-nieces “were surviving.” Nicholas’ petition for letters of administration de bonis non was supported by waivers and consents of twenty-one of the distributees identified and citation issued to one alleged distributee who did not appear on the return date. According to his petition, the value of the assets in need of administration was $9,000.00.

Published on: May 23, 2014

Court Decides Case Regarding Foreclosure of Estate Property

by Stephen Bilkis

In an action transferred to this court from Supreme Court, Nassau County, defendant, a house loan corporation, one of several defendants, moves the court for an order dismissing the complaint as against it. Plaintiffs oppose Countrywide’s motion and cross-move for summary judgment dismissing Countrywide’s answer, or, in the alternative, striking Countrywide’s fourth and seventh affirmative defenses.

A New York Probate Lawyer said that this action emanates from a foreclosure proceeding involving property located at Hempstead, New York. That property was owned by an individual who died intestate in July 1986. Her brother administered her estate as voluntary administrator pursuant to SCPA Article 13. It appears, although it is not entirely clear, that the sole distributee and that the subject property vested in him immediately upon his sister’s death. The other then died testate on June 9, 1994. The deceased was appointed the voluntary administrator of the estate.

The court’s file contains the original will which devises and bequeaths all of his property to his cousin who died in August 2000. There was no deed executed from the estate of the first decedent to the second, nor was there a deed from the estate to the deceased executor. Although the original will was filed in the court incident to the voluntary administration of the estate of the second decedent, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the decedent, the administrators of his estate, and claim to be his only distributees.

Published on: May 21, 2014

Public Administrator Asks Court To Disallow Attorneys Fees

by Stephen Bilkis

A New York Probate Lawyer said a man died intestate, a resident and domiciliary of Nassau County. Letters of estate administration were issued to the Public Administrator. The account filed by the Public Administrator shows total charges of $614,863.33, total credits of $72,849.32 and a balance on hand of $595,994.34. Objections to the account were filed by people who claim to be distributees of the decedent. They objected to the disallowance of their claims against the decedent’s estate and the Public Administrator’s request to distribute the net estate to the New York State Comptroller for the benefit of the decedent’s unknown distributees, and they reserved their right to object to the Public Administrator’s legal fees, but ultimately did not object to them. Thereafter, the Public Administrator filed an affidavit bringing the account current. It shows total charges of $677,462.32 and total credits and cash on hand of $677,462.32.

The record reflects that a diligent and exhaustive search was made to discover evidence of other possible distributees. Since more than three years have elapsed since the decedent’s death, the known heirs are entitled to the benefit of the presumption of Surrogate’s Court Procedure Act (SCPA). Therefore, based upon the evidence before the court, it is held that the decedent is survived by five distributees: one paternal cousin and four maternal cousins. Pursuant to Estates Powers and Trusts Law (EPTL), one-half of the decedent’s property passes to the issue of paternal grandparents, by representation, and one-half to the issue of maternal grandparents, by representation.

A New York Will Lawyer said that durning to the accounting, the Public Administrator’s reimbursement in the amount of $7,469.00 for the decedent’s funeral is approved as a reasonable and necessary estate administration expense. The Public Administrator has asked for the court’s approval for disallowing the claims for payment of legal fees; for cleaning services at the decedent’s residence; for cleaning services at the decedent’s residence; and for cleaning services at the decedent’s residence. The basis of the Public Administrator’s rejection of the claims is that these individuals were not authorized by the Public Administrator to provide cleaning services to the estate. These four claims have now been withdrawn, making the request for approval of their disallowance moot. The claim of the oil company is disallowed for failure to submit documentary evidence sufficient to substantiate such claim and for failure to complete and return the affidavit of claim required by SCPA.

Published on: May 20, 2014

Probate Court Decides Tax Issue

by Stephen Bilkis

New York Probate Lawyers said the decedent died a resident of Nassau County and left a will. The will was admitted to probate by decree of the court and letters testamentary were issued to one of the decedent’s daughters. The decedent was also survived by another daughter.

A New York Will Lawyer said the decedent directed that all taxes and duties of any nature which may be assessed or imposed, either by the United States, the State of New York, or by any other jurisdiction, upon or with respect to property passing under the provisions of the Will or upon or with respect to property not passing under the provisions of the Will but upon which property such taxes are assessed or imposed, including all such taxes assessed or imposed upon the proceeds of any policies of insurance upon her life, be paid out of her residuary estate. Unless her residuary estate is insufficient to pay the taxes in full, no claim shall be made by her Executors for a contribution toward the payment of taxes against any beneficiary of this Will, other than the residuary beneficiary, or against any person who, by reason of her death, receives property outside the Will, or against any person who receives the proceeds of life insurance contracts.

Bronx Probate Lawyers said the executor has filed an account of her proceedings. The decedent’s daughter and niece have filed objections to the account. The objectants object to the Statement of Interested Parties, because they contend that one of the daughters is not a 50% residuary beneficiary as described therein but instead the sole residuary beneficiary. The objectants claim that the dispositions are pre-residuary legacies and not part of the residuary estate. The objectants also object to the manner in which the executor has allocated estate taxes. The objectants argue that the estate taxes should be borne entirely by one of the daughters since she is the sole residuary beneficiary under the Will.

Published on: May 18, 2014

Public Administrator Seeks Requests an Accounting and Attorneys Fees

by Stephen Bilkis

A New York Probate Lawyer said in this accounting proceeding are the issues of attorney fees and accountant fees. The Public Administrator also seeks approval of commissions. In addition, the Public Administrator asks for approval to disallow the claims of several hospitals, various healthcare corporations and two insurance corporations on the grounds that each claimant has failed to submit documentary evidence sufficient to substantiate any such claim and failed to complete and return the Affidavit of Claim provided to each claimant by the Public Administrator. The Public Administrator also asks for authorization to distribute the sum of $1,781.28 to the New York State Comptroller’s Office for the benefit of the unknown holder in due course of a money judgment entered by the First District Court of Nassau County in favor of a bank. Lastly, the Public Administrator asks to be released from the surety bond.

A New York Will Lawyer said the decedent man died intestate as a resident of Nassau County. Letters of Estate Administration were issued to the Public Administrator. The decedent was survived by three siblings. The summary statement shows charges to the accounting party of $30,141.29.

With respect to the issue of attorney 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. 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: May 18, 2014

Court Discusses Jurisdiction Issues

by Stephen Bilkis

A New York Probate Lawyer this probate proceeding, objections were filed and a jury demanded by the respondents. A motion is made by them to dismiss the petition before any trial on the merits upon the ground that the decedent was not a (domiciliary) resident of Nassau County at her death. They request that the proceeding be forwarded to New York County as the proper county of residence and also for the convenience of witnesses.

In support of the motion, there have been filed affidavits of respondents’ attorney and of respondent man along with copies of affidavits and exhibits which had been previously submitted to the court in connection with an application to revoke letters testamentary which had been issued to the proponent here on the estate of the decedent’s husband, who died on May 26, 1975.

A New York Will Lawyer in opposition to the motion various other facts are asserted to sustain proponent’s claim that Nassau County was the domiciliary residence of decedent and both attorneys have submitted memoranda in support of their respective positions. The court has examined them and will discuss below the various facts alleged by both sides.

Published on: May 17, 2014

Petitioner Requests an Accounting Regarding Real Estate Holdings

by Stephen Bilkis

A New York Probate Lawyer said this action for an accounting was commenced on August 14, 2009. In the first cause of action, the complainant seeks an accounting with respect to the affairs of a chain of stores. In the second cause of action, the complainant seeks an accounting with respect to the affairs of the real estate company. In the third cause of action, the complainant seeks a declaratory judgment that the mediation settlement agreement does not cover her claims for an accounting.

A New York Will Lawyer said the defendant woman moves to dismiss the complaint for lack of personal jurisdiction. She argues that the estate has no contacts with New York. Civil Practice Law Rules (CPLR) provides that a court may exercise personal jurisdiction over any non-domiciliary, or his executor or estate administrator, who in person or through an agent, transacts any business within the state as to a cause of action arising from the transaction of business. Prior to his demise, the decedent was involved in the management of all six of the partnerships. The complainants’ causes of action for an accounting relate to the properties located in Queens. Thus, the complainants’ causes of action for an accounting arise from activity carried on by the decedent in New York State. Moreover, the decedent had additional contact with New York by virtue of having received letters testamentary from the Nassau Surrogate’s Court. Since the decedent transacted business in New York, the court may exercise personal jurisdiction over his executrix with respect to a cause of action arising from the transaction. The defendant woman’s motion to dismiss for lack of personal jurisdiction is denied.

Brooklyn Probate Lawyers said the defendant woman argues that any claim asserted by the complainant pursuant to the receipt, release, and refunding agreement is barred by the one year time limit applicable to claims against the decedent’s estates in Massachusetts probate proceedings.