New York City

Published on: May 6, 2014

Court Discusses Jurisdiction Issue in Probate Proceeding

by Stephen Bilkis

A New York Probate Lawyer said a woman died in Greece and her premises was transferred into a trust, which is irrevocable. The trust document, which was in English, was prepared by the woman’s attorney. The said attorney was also named as the trustee of the trust. A deed transferring the estate into the trust was recorded in the county clerk’s office.

A New York Will Lawyer said the proposed last will prepared by the woman’s attorney has been offered to probate in the court. Sources revealed that the instrument donates the deceased woman’s residuary estate to one of the organization.

Afterward, Manhattan Probate Lawyers said the deceased woman’s sister initiated a proceeding in the Greek court with respect to an unsigned instrument. The opponents argue that the instrument has merely been published, which is of no effect since the deceased woman was a New York resident and any testamentary document can only be proved valid by the state court. The woman’s sister’s papers, on the other hand, stated that the instrument had been offered to probate in the Greek court.

Published on: May 5, 2014

Court Decides Degree Vacating Probate

by Stephen Bilkis

A New York Probate Lawyer said that, in this proceeding to vacate a decree of probate, the respondent, moves for an order pursuant to CPLR 2221 (d) and (e) renewing and rearguing her motion for an order directing the petitioner, to submit to a court admissible Sibling Full DNA Test at an established laboratory and provide a report of same to the attorneys for respondent. The petitioner, cross moves for an order pursuant to CPLR 2221 (d) and (e) granting renewal and rearguing this court’s decision dated June 29, 2011 (Decision No. 27229), and upon renewal and rearguing, granting the petitioner’s request that the court strike from said decision the language stating that it is conceded and undisputed that petitioner is the decedent’s son.

A New York Will Lawyer said that, the decedent died a resident of Nassau County on February 14, 2010. A will dated October 12, 2006 was admitted to probate and letters testamentary issued to the respondent, on May 6, 2010. The will left the decedent’s residuary estate in equal shares to his son, to his niece, the respondent, and to his nephew.

A Nassau Estate Litigation Lawyer said that, subsequent to the admission of the will to probate, the petitioner, commenced a proceeding, by order to show cause, to vacate the probate decree on the ground that she is a child of the decedent who was not cited in the probate proceeding. The respondent thereafter moved by order to show cause for an order directing the son and the petitioner to take a Sibling Full DNA test. By decision dated June 29, 2011, this court denied respondent s motion, without prejudice, as premature, until a notice for discovery and inspection is served upon his son or until he consents to the test. On July 5, 2011, the son was served with a notice for discovery and inspection for a Sibling Full DNA Test, and on July 6, 2011 he signed a written consent to such test.

Published on: May 4, 2014

Petitioner Alleges Undue Influence

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 objections to the offered will and admitting it to probate. The decedent died on March 19, 2006. Decedent had no issue nor any known relatives. The proponent was named as the sole residuary beneficiary in a prior will of the decedent dated December 1, 1993. The proponent is the daughter of the decedent’s predeceased husband, who died on November 3, 1998. The will offered for probate dated April 6, 1999 bequeaths one-half of decedent’s residuary estate to a long-time friend who resides in Germany, one-quarter to a neighbor, and one-quarter to another neighbor. A friend, is the nominated executor and the proponent.

A New York Will Lawyer said that, in December 1998, the proponent commenced a guardianship proceeding pursuant Article 81 of the Mental Hygiene Law in Supreme Court, Nassau County, alleging, among other things, that the decedent was incapable of managing her affairs. During the pendency of the guardianship proceeding, decedent executed a will dated January 11, 1999, in which she left her residuary estate to her friend, $50,000.00 to her neighbor and the sum of $1,000,000.00 to the American Red Cross. The January 1999 will was executed in the office of the attorney who drafted the will. The attorney first represented the decedent in the guardianship proceeding. The court evaluator appointed in the guardianship proceeding, reported to the Supreme Court that in his opinion, based on an interview with the decedent, decedent was not an incapacitated person and that no guardian was required. The guardianship proceeding was discontinued by stipulation dated March 22, 1999.

A Queens Probate Lawyers said that, the propounded will dated April 6, 1999 was also prepared by the said attorney. She met with the decedent on at least four occasions between the January 1999 will and the April 1999 will. The propounded will eliminated the bequest to the American Red Cross, increased the bequest to her neighbor and provided a bequest for another neighbor. The will was executed in the decedent’s home and the will’s execution was supervised by the said attorney. As referenced above, the decedent had previously executed a will dated December 1, 1993 that left her entire estate to her husband if living, or if not living, to the proponent. A second guardianship proceeding, commenced in July 2001 by the proponent, resulted in an order and judgment dated October 20, 2001 appointing the proponent and guardian for the personal needs of decedent and the guardian for the property management of decedent.

Published on: May 3, 2014

Court is Asked to Determine Attorneys Fees

by Stephen Bilkis

A New York Probate Lawyer said that, in this proceeding, the court is asked to determine the attorneys’ fees due the former counsel for the executors of the decedent’s estate. The decedent died a resident of Nassau County on January 30, 2011. A last will and testament, dated December 28, 1995, was admitted to probate by this court by decree dated May 11, 2011. Letters testamentary issued to co-executors of the decedent’s estate. Petitioner law firm had represented both of the co-executors in the probate proceeding, but due to a conflict of interest sought to withdraw as counsel.

A New York Will Lawyer said that, the petitioner submitted an affidavit of legal services, along with detailed time records which itemize the legal services provided and the disbursements made. The billing statements cover three time periods, namely: January 28, 2011 through August 16, 2011, as reflected in Invoice No. 16444, for the amount of $17,490.00 for services rendered, plus $1,528.58 for disbursements, less a credit for $1,280.00 paid; September 9, 2011 through November 22, 2011, as reflected in Invoice No. 16457, for the amount of $2,595.00; and December 5, 2011 through July 10, 2012, as reflected in Invoice No. 16543, for the amount of $11,267.50 The total fee requested by counsel is “a sum not less than $31,000.00,” plus disbursements of $1,582.58, of which $1,280.00 was already paid.

A Nassau Estate Litigation Lawyer said that, the legal services performed can be subdivided as follows: January 28, 2011- March 1, 2011: During this period, counsel spoke by telephone multiple times with a nominated co-executor, and with her daughter, , and he met with her daughter once. Counsel billed $1,295.00 for this work. March 2, 2011 – March 27, 2011: Counsel began working on the probate proceeding, including the family tree affidavit. According to the billing records, counsel also worked on researching and redeeming decedent’s savings bonds, a non-probate asset, as well as bonds belonging to the co-executor and her daughter. The charges for this time period come to $4,537.50. March 28, 2011 – July 17, 2011: On March 28, 2011, counsel sent a retainer letter to confirm that he had been engaged to represent them as co-executors of decedent’s estate and to assist in the transfer of non-testamentary assets. Counsel then continued working on the estate administration, including the renunciation of the other as co-executor and the appointment of the executor in her place. The services rendered included dealing with decedent’s medical bills and counsel’s interaction with banks. Beginning on June 28, 2011, counsel had an associate assist him with rendering legal services to the estate. Documents submitted by counsel indicate that on July 12, 2011, the day after his initial meeting with the co-executor, counsel noted for the first time that decedent’s bank records reflected pre-death transfers by check to the daughter as decedent’s attorney-in-fact. Counsel states that he discussed these checks with the co-executor and explained that they were irregular and might constitute self-dealing by the daughter. Counsel and co-executor agreed to review an additional year of statements. The billable time for this period totaled $7,535.00. July 18, 2011 – November 3, 2011: Counsel’s time records reflect that on July 18, 2011, he began to research the possibility that he had an ethical conflict in jointly representing the co-executors, based upon the exercise of a power of attorney granted by the decedent to which power had apparently been exercised to make transfers to the daughter and the co-executor. The records reflect that counsel continued to represent the co-executors while researching and discussing the issue with his clients. A list summarizing all of the transfers made by them was prepared and sent to both co-executors. Counsel reports that co-executor then advised counsel that he did not want to pursues a claim in connection with these transfers. On September 16, 2011, counsel wrote to the co-executor seeking written confirmation from him that he intended to waive any claim regarding the transfers made by the daughter. The Co-executor did not sign the letter as requested. Instead, he consulted with another law firm, which ultimately was substituted as the co-executor’s new counsel in this matter. The total amount billed for this time period, exclusive of disbursements, was $6,077.50.

Published on: May 2, 2014

Court is Asked to Dispense with Filing of a Bond

by Stephen Bilkis

A New York Probate Lawyer said that, in this uncontested probate proceeding, the court is asked to dispense with the filing of a bond by the nominated trustee due to a purported scrivener’s error in the will. The decedent died a resident of Nassau County on February 4, 2007. A will dated September 20, 2006 has been offered for probate by the nominated executor. The executor is the decedent’s husband. The decedent was also survived by two adult children, an adult grandchild and two minor grandchildren.

A New York Will Lawyer said that, Article FOURTH of the will creates a trust to be funded with the “exemption amount.” The trust terminates upon the executor’s death, and he has a limited testamentary power of appointment over the trust principal. If or to the extent that he fails to exercise the limited power of appointment, the remaining trust principal is payable to his 1993 Insurance Trust. The residuary estate is payable to him. The will nominates the husband as trustee and the decedent’s children as successor trustees.

Nassau County Probate Lawyers said the issue in this case is whether the executor husband can be dispense with the filing of a bond by the nominated trustee due to a purported scrivener’s error in the will.

Published on: May 1, 2014

Court Decides if Objections to Guardian Ad Litem Report Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, in this probate proceeding, the decedent was survived by her husband and her three adult children. The propounded instrument nominates all three sons as co-executors and bequeaths the entire estate to them, to the exclusion of her husband. The decedent’s husband is a person under disability and a guardian ad litem was appointed to represent his interests in this proceeding. Although no objections were filed, settlement negotiations between the guardian ad litem and the three brothers proceeded for some time without success. Ultimately, the guardian ad litem filed his report wherein he indicates that he has no objection to the will’s admission to probate, but seeks the court’s permission to file a notice of election on behalf of his ward. He also opines that due to the hostility displayed by the brothers against one another, the best interests of the estate administration would be served by the appointment of an independent party to administer the estate.

A New York Will Lawyer said that, the third son has not filed any objection to the recommendations made by the guardian ad litem. The court notes that he has been living in the decedent’s former residence at least since the time of the decedent’s death, and by his own admission has been living there without either heat or electricity for many months. His suitability as a fiduciary is therefore greatly suspect.

A Westchester County Probate Lawyers said that, the first son, an attorney, has filed objections to the report of the guardian ad litem in which he threatens to immediately commence a Supreme Court action to block the appointment of an independent fiduciary, asserting he will “not stand idly by while some two-bit money hungry shyster is appointed to serve as Executor instead of your affirmant and/or your brothers’.” He also threatens to move for a change of venue, fearing a conspiracy exists between the court and the second son’s attorney based on the fact that the latter’s attorney, as a law student, served as an intern in this court during the summer of 1996. The court also notes that at the last conference on July 21, 2010, the first son had to be removed from the court’s conference room by a court officer because of his extremely abusive and hostile manner directed toward his siblings and the second son’s attorney.

Published on: April 13, 2014

Court Rules on Reasonable Attorneys Fees in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent died on June 4, 1931, a resident of Nassau County. His will dated November 26, 1930 was admitted to probate by decree dated June 15, 1931. The will created a trust for the benefit of the beneficiary under Article ELEVENTH. Letters of trusteeship originally issued to. The beneficiary died on August 30, 1989, a resident of New York County, leaving a will and codicil which was admitted to probate by the Surrogate’s Court of New York County by decree dated October 6, 1989. At the time of her death, the trustees of the trust were the beneficiary and the Bank.

A New York Will Lawyer said that, pursuant to Subdivision A of Article ELEVENTH of the decedent’s will, the trust is to be administered and disposed of as follows: “A. If my said daughter shall survive me, to invest and from time to time reinvest said share and to collect the income thereof, and during the life of my said daughter apply the net income thereof to the use of my said daughter by payment thereof to her, and IN FURTHER TRUST upon the death of my said daughter to pay and distribute the principal of the trust estate so held to and among the lawful issue of my said daughter who shall survive my said daughter and the lawful issue of my said son, who shall survive my said daughter, in such amounts, equal or unequal, as my said daughter in her uncontrolled discretion may, by last will and testament duly admitted to probate and not otherwise, appoint, expressly granting to my said daughter the right in the exercise of such power of appointment to exclude wholly from participation therein any one or more of her issue and/or any one or more of the issue of my said son; provided, however, that my said daughter, by last will and testament duly admitted to probate and not otherwise, may on such terms and conditions as she may think fit appoint any part or parts of the principal of said trust estate to a trustee or trustees in trust for the use of any of the lawful issue of my said daughter born before my death and her surviving, or of any of the lawful issue of my said son born before my death and her surviving, during the life of the cestui que trust of each trust so created, or for such lesser period as she may think fit.”

A Staten Island Probate Lawyer said that, the decedent daughter was survived by her three children,. In accordance with the decedent’s exercise of her power of appointment, Chemical Bank divided the principal of the decedent trust into three equal shares and held one such share in separate further trust for each of her children. This is an accounting with respect to the sub-trust for the benefit of the child. A Nassau Estate Administration Lawyer said that, by decree dated April 6, 1992, was appointed to serve as co-trustee of the fist child sub-trust with Manhattan Bank (successor by merger to Chemical Bank). By order dated February 27, 2008, this court approved the resignation of the Bank, as co-trustee of the sub-trust for the first child and the appointment of the decedent. The presumptive remainder men of the sub-trust for the benefit of the first child/son, the decedent’s great-grandchildren, all of whom are adults. Citation issued to all of the presumptive remainder men, as a successor trustee of the sub-trust. None of them have appeared in this proceeding.

Published on: April 12, 2014

Court Rules on Action to Vacate Deed

by Stephen Bilkis

A New York Probate Lawyer this is an action to vacate a deed or, in the alternative, impress a constructive trust, which was originally commenced by RM, as executor of the estate of MM, in the Supreme Court of Nassau County. The proceeding was later on transferred to the court at bar by order dated 21 October 2005.

RM moved for summary judgment and the respondent, CS, cross-moved for summary judgment for a declaration that the transfer was a valid gift.

The particular events that took place are detailed below.

Published on: April 10, 2014

Respondent Contends Court Lacks Subject Matter Jurisdiction

by Stephen Bilkis

In this Will Contest case, a motion by the executor for an order consenting to a transfer to this court of an action currently is pending in Supreme Court, New York County. Respondent argues that this court lacks subject matter jurisdiction of the dispute and that Nassau County is not the proper venue for the case.

A New York Probate Lawyer said that the decedent died in December 1993. The court admitted his Last Will and Testament to probate and issued letters testamentary to petitioner thereafter. Petitioner subsequently filed an accounting and a supplemental accounting, respectively, with this court. At the closing date of the latter, the estate held interests in real estate partnerships, all controlled by general partner. At a special meeting of the shareholders, decedent issued sixty shares of stock each to petitioner and respondent, with petitioner holding her shares in trust for respondent, and with respondent holding his stocks in trust for decedent, an arrangement referred to as a “tontine” trust. Evidenced in the meeting’s minutes is “the intention that the sole possession and ownership of the stock remain within the three parties and that the survivor of the three have sole possession of all the outstanding and issued stock of the corporation.” Also, new stock certificates would be issued when one of the parties died, and these would be evenly split and distributed to the remaining parties, with each holding his share in trust for the other. Petitioner disputes the existence of this arrangement, and respondent’s pending Supreme Court case pertains to petitioner’s actions as executrix relating to decedent’s sixty shares.

A New York Will Lawyer said the Surrogate Court’s subject matter jurisdiction has steadily expanded throughout the twentieth century. The Court of Appeals held in a case involving two living parties (one being a fiduciary of a decedent’s estate) and an eviction proceeding, that, “for the Surrogate’s Court to decline jurisdiction, it should be abundantly clear that the matter in controversy in no way affects the affairs of a decedent or the administration of his estate”.

Published on: April 9, 2014

Disinherited Daughter Challenges Will

by Stephen Bilkis

The decedent died leaving a will. The will nominates 2 s executors but one of them renounced his appointment. The decedent was survived by his two adult children.

A New York Probate Lawyer said that the will provides that the decedent’s entire residuary estate shall be distributed to decedent’s companion. The will specifically disinherits the decedent’s children. The executor has petitioned for preliminary letters testamentary.

By order to show cause, the decedent’s daughter seeks an order (i) denying the issuance of preliminary letters testamentary to the executor; (ii) disqualifying him from serving as executor of the estate; (iii) removing him as the attorney for the estate; (iv) compelling the executor to comply with discovery demands previously served; (v) compelling him to produce and file with the court an alleged 2004 will of the decedent; (vi) appointing a guardian ad litem to represent the interests of the decedent’s two infant grandchildren named as beneficiaries in the prior will; (vii) appointing the daughter as executor since she was alleged named as executor in the 2004 will; (viii) staying the issuance of preliminary letters to the executor pending a hearing on the order to show cause; and (ix)adjourning the SCPA 1404 examinations.