New York City

Published on: April 11, 2012

Court Decides Appropriate Fee for Guardian ad Litem

by Stephen Bilkis

A decedent was survived by his wife (a person under disability represented by a guardian ad litem), an adult son (petitioner) and four adult grandchildren and the issue of a predeceased child. Under the decedent’s will, his entire estate was left to the decedent’s lifetime trust, which in turn leaves the entire estate to petitioner, to the exclusion of the surviving spouse and grandchildren.

Subsequently, a stipulation of settlement was entered into by the parties which was then approved by the court for the best interest of all parties concerned. The approved settlement permitted the will’s admission to probate (estate litigation or will contest), effectively guarantees the surviving spouse her elective share, and distributes the net estate after payment of debts, administration expenses, and the elective share, into two parts, one part to be distributed to the petitioner and the other to be divided equally among the grandchildren.

The question now is the amount of appropriate fee for the guardian ad litem.

Published on: April 10, 2012

Court Determines Appropriate Legal Fees for Probate Case

by Stephen Bilkis

In an accounting proceeding, the court is presented with the issue of determining the amount of attorney’s fees and accounting fees to be granted to be charged against the estate of the decedent.

Decedent is a resident of Nassau County who left a will that was admitted for probate by the Surrogate’s Court of Nassau County. Letters testamentary was issued to decedent’s daughter. The decedent was survived by his seven children. The will stipulated that equal shares of the residuary estate shall be divided among the surviving children of the decedent.

The accounting proceeding is the first and final settlement of account made by the executor covering a period of four years. The summary statement submitted by the accounting party showed the amount of $955,030.92. Some of the children of decedent filed objections regarding the accounting statement. A New York Probate Lawyer said in a settlement agreement entered into by the parties, the executor reduced her commissions for payments to the objectants. The agreement also stipulated that certain estate’s tangible properties will be given to the latter.

Published on: April 10, 2012

Court Decides Payment of Legal Fees for Administration of an Estate

by Stephen Bilkis

A resident of Uniondale, on 26 December 1998, died. The decedent left a will dated 15 June 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 14 April 2005. Decedent’s will was admitted to probate (estate litigation or will contest) on 11 May 2010 and letters of administration were issued, thereafter, to the Public Administrator. The account of the Public Administrator was initially filed on 6 July 2010.

A New York Probate Lawyer said the subject matter presented before the court is the first and final account of the Public Administrator for the estate of the decedent and the approval of the payment of fees to the attorney for the Public Administrator in connection with the administration of the estate (estate administration).

The Public Administrator sought the approval of the accounting, approval of the commissions, the fixing of fees for the services of the attorney and accountant, authorization to distribute the net estate to the court appointed administrator of the estate and the release of the administrator from the surety bond.

Published on: April 6, 2012

Court Decides Jurisdiction of a Will Contest

by Stephen Bilkis

This is an appeal filed in the Supreme Court by a party who objected to the probate of the will of a decedent in the Surrogate Court of New York.

The facts of the case state that the decedent was a resident of New York. Sometime in his life, he became a resident of Austria and it was also in the said country that he eventually died. The will of the decedent was submitted for determination in Austria and two years after, the said will was again presented to a Surrogate Court of New York County. A New York Probate Lawyer said that as per reading of the last will and testament, it established the fact that the decedent was a resident of New York and at the same time named a legatee to receive half of the estate. The legatee assigned in the will is also a resident of New York. The properties covered in the will also referred to the properties owned by the decedent and located in the State of New York

The hearing in the court of New York was objected to because of the question regarding the domicile of the decedent. It is alleged that the decedent was a domiciliary of Austria at the time of his death and therefore the court of Austria has jurisdiction in the estate administration of the decedent. Another issue was that the court of Austria has already taken cognizance of the will and in the process of adjudicating on the same. The appellant in effect said that since the Austrian court is already in the process of determining the matters involving the will contest surrounding the will of the decedent, the Surrogate Court of New York must no longer assume jurisdiction because another court which has the proper jurisdiction has already assumed power over the case.

Published on: April 6, 2012

Court Determines of Undue Influence Involved in Will Case

by Stephen Bilkis

A lady testator co-owned an apartment building in New York with her two sisters. The bulk of her estate came from her share in the rent income she derived from the apartments and the value of the apartment building and its premises. She executed a will on September 16, 1997 naming her two sisters as co-executors with their neighbor. She gave legacies to her seven nephews and nieces, the children of her two sisters but she provided that the remainder of her estate will be shared equally by the three executors and in the event that her sisters die ahead of her, the estate will go to their neighbor.

As it turned out, the testator’s two sisters died ahead of her. The testator herself lived until she was 93. She died on June 18, 2006. Their neighbor brought the petition for probate of her will.

The nephews and nieces of the testator all object to the probate of the will on the grounds that it was not genuine; it was not validly executed; it was executed by mistake; it was executed without testamentary capacity; it is the product of their aunt’s neighbor’s undue influence on her; it is the product of duress exercised by their aunt’s neighbor on her; and it was procured by the neighbor’s fraud.

Published on: April 5, 2012

Petitioner Brings Will Contest Action

by Stephen Bilkis

A man executed a will in January 23, 1962. In this will the man made bequests of jewelry and personal property; devises of real property; and a trust to his widow. The value of the gifts and benefits he gave to her in the will amounted to $7,500,000.00.

He also made a bequest to his four daughters in the form of a trust amounting to $1,700,000. The four daughters were to share the trust.

He also made a bequest for each of his five sons in the form of individual trusts amounting to $1,450,000.00 each.

Published on: April 5, 2012

Court Determines if it has Proper Jurisdiction for Probate

by Stephen Bilkis

In this case, the only issue that has to be determined by the court is whether or not it has jurisdiction to entertain the probate of the decedent’s last will and testament.

The facts of the case state that the decedent was a resident of New York when he executed his last will and testament. The said will was executed in New York on March 24, 1974 and the executor assigned is also from New York. A few months after the will was executed and during the same year, the testator was removed from his residence in New York by his niece because he needed personal care and attention due to old age and sickness. From New York the decedent was then transferred to the place of residence of the niece which is in Pennsylvania. The following year, the niece was able to get an appointment as guardian of the decedent from a court in Pennsylvania based on the fact that the decedent then is already incompetent. The guardian later removed all the personal properties in New York leaving only the house owned by the decedent as the only estate left in New York.

A New York Probate Lawyer said that upon the death of the decedent, the named executor in the will sent to the guardian the copy of the will executed by the decedent. The lawyer of the guardian wrote back and stated in the letter that the guardian had already applied for letters of administration and that his client treats the said will as invalid. The court of Pennsylvania later on also issued the letters of administration applied for by the guardian. This started the will contest between the parties.

Published on: April 4, 2012

Court Says it has the Power to Compel Fiduciary to Produce Information

by Stephen Bilkis

A testator died and his executrix successfully had his will admitted into probate. The executrix had already rendered an accounting of the properties of the estate and she was in the process of litigating claims for and against the estate. She is readying the estate for distribution to the distributees and heirs mentioned in the will.

The executrix was the wife of the testator’s attorney. He was also the same lawyer who drafted the testator’s will. It turns out that the husband of the executrix of the testator’s will had been the legal counsel for the testator for 40 years. The testator signed his will in the presence of the husband of the executrix. It was also uncovered that the lawyer opened a bank account into which the assets of the testator were transferred by the lawyer just before the death of the testator. The lawyer’s wife was named in that bank account as the person to whom the bank account shall be transferred upon the death of the testator. A New York Probate Lawyer said she document that transferred the assets of the testator to the lawyer’s wife was signed by the lawyer as a witness.

For these reasons, the Surrogate’s Court issued a subpoena to the executrix’s husband for him to come to court and bring the documents regarding the opening of the bank account in the name of the testator just before his death; those documents that transferred ownership of the account from the testator to the executrix and all other documents mentioned in the order.

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 3, 2012

Court Decides Will Contest Issue

by Stephen Bilkis

A father of three children died on December 26, 1960 in New York County. In January of the following year, a petition for the probate of two presented wills was filed in New York County Court. The petition was filed by the special guardian for the children alleged that the deceased father resided at Park Avenue, New York City and that his legal heirs were his three children.

A New York Probate Lawyer said the petition stated that the deceased father and his former wife had been married and divorced. The special guardian did not believe that the former wife was an heir of the deceased. The will presented claimed to be the deceased father’s will, bestowed the former wife with $50,000. Supplement to the presented will nominated the former wife as guardian of the infant son of the deceased. The former wife carried out a paper including an appearance in the trial, a waiver of the service of citation and a specific consent that the presented will be admitted for validation. The attorneys representing the former wife filed an authorized notice of appearance on her behalf as the appointed guardian of the infant son of the deceased. The special guardian representing the infant filed his report recommending validation. Since there was no objection to the validation of the will was filed, the proof was taken in respect of implementing the presented will, the capacity to execute a will of the deceased and his freedom from control. Thereafter, a ruling was made admitting the presented will for validation and granting letters of administration and letters of trusteeship.

On June 1961, the former wife filed a petition individually and as general guardian of the infant son, asking that the validation ruling be opened, cleared out and set aside. The stated basis is that the deceased father was not a resident of New York County but was a resident of Suffolk County. The petition in the revocation trial admits that all the facts upon which the former wife’s accusations of residence are based within her knowledge at the time she appeared in the validation trial and consented for validation. She alleges that she did not notice that the trial was in New York County. Staten Island Probate Lawyers he failure to notice occurred when a copy of the citation was served to her, when she later executed a waiver and consent to the validation and when she executed an affidavit and acknowledged an authorization for her attorneys to appear for her as the appointed guardian. The attorneys then appearing do not represent the former wife on the application. The administrators of the will made an appeal to dismiss the petition.