New York City

Published on: January 5, 2014

Case Issue is Whether Court Erred in Denying Probate of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, the decree denying probate to the propounded instrument reserved for determination by supplemental decree all applications for costs, allowances, and fees. The attorney for petitioner who claims to be the sole statutory distributee of the decedent, asks the court to fix his reasonable compensation and costs and to direct payment from the general estate. The attorney did not proceed in the manner required by section 231-a, Surrogate’s Court Act, and hence his application must be based upon section 278. He is not entitled to costs or an allowance under that section. Even if he had proceeded under section 231-a, he would not be entitled to have his fee paid out of the general estate for he rendered no services of benefit to the estate. His services were solely for the benefit of his individual client.

A New York Will Lawyer said that, the position of the client was, as the attorney states, as anomalous one. A 1918 will has been admitted to probate in British Honduras ‘until a later Will be found’. A 1955 instrument was offered for probate here as a lost will. It was to the interest of the alleged distributee that the 1955 instrument be proved to have been duly executed (thus revoking the 1918 will), but that it be denied probate on the ground that it was not in existence at the time of the decedent’s death. The attorney was thus partly on one side in the contested probate proceeding and partly on the other side. He accordingly filed no pleading and took no active part in the contest. Before submission of the case to the jury he made motions appropriate to his client’s interests. He was otherwise quiescent, hopeful that the contending factions would destroy each other. The verdict of the jury was against the proponent on the question of the making of the will.

A Manhattan Probate Lawyers said that, the attorney’s present contention that he represents a party who has succeeded in the contest is contrary to the record herein. He attempted to serve only his own client’s interests, he rendered no services of benefit to the estate and he was not successful insofar as his client’s cause is concerned. There is no basis for allowing him costs, compensation or allowance out of this estate. The attorney for the proponent in the probate proceeding request an allowance for their services. In prohibiting an award of costs to an unsuccessful contestant in a probate proceeding, section 278 explicitly excepts from that prohibition one ‘named as an executor in a paper propounded by him in good faith’, and it further affirmatively provides that ‘where a person named as the executor in a will propounds the will for probate, such person so named as executor may, whether successful or not, in the discretion of the surrogate, be awarded costs and all necessary disbursements made by him and all expenses incurred in the attempt to sustain the will.’

Published on: January 4, 2014

Court Dicusses Trust with PourOver Will for Infant

by Stephen Bilkis

New York Probate Lawyers said that, the report of the guardian ad litem for infant remainder men of the residuary trusts makes certain recommendations, some of which are in reality objections to the account.

A New York Estate Administration Lawyer said that, a trust which the decedent had created provided for a pour-over to the decedent’s estate. The decedent died on June 8, 1968. Letters were issued to three executors, two of whom were also trustees under the deed of trust. Understandably, some time was required for the trustees to prepare their account and transfer property to the executors. The shares of stock and some bonds were transferred on March 28, 1969; United States bonds, on May 15, 1969 and most of the other bonds, on September 30, 1968. The guardian points out that the trustees computed their paying commissions on values as of the dates of transfer to the executors, but the executors herein computed their receiving commissions on valuations as of the date of the decedent’s death, which were more than two hundred thousand dollars greater than the values on the dates the funds were received.

The issue in this case is whether objections on the account of the estate should be granted.

Published on: January 4, 2014

Court Discusses Powers of Executor Regarding Prior Will

by Stephen Bilkis

A New York Probate Lawyer said that, the proponent of the will of the decedent seeks a protective order with respect to a notice to examine under SCPA 1404. The decedent died on July 9, 1995, survived by her daughter, as sole distributee. She was also survived by her granddaughter,. Under the propounded will, dated October 3, 1994, the decedent directed that her entire estate, valued at approximately $250,000, be pored over into a living trust created on the same date. Pursuant to the terms of such trust (which was in effect at her death), the trust property, after payment of $30,000 to a named beneficiary, is to be distributed 40 per cent to her daughter, and 60 per cent to her granddaughter.

A New York Will Lawyer said that, the will was offered for probate by the granddaughter, the named executrix, who is also the trustee of the living trust. It is noted that in an earlier will, dated July 30, 1984, the decedent had left one half of her estate to her husband (the named executor) and the other half equally to her daughter and granddaughter. On March 19, 1991, after her husband’s death, the decedent executed a codicil in which she divided her estate administration equally between her daughter and granddaughter and named the attorney-draftsman as executor.

A Brooklyn Probate Lawyers said that, the attorney, duly made a party to the probate proceeding as executor named in a prior instrument filed with the court (SCPA 1403[1][d], served a notice to examine the draftsman, the attesting witnesses and the proponent of the propounded will. The proponent, however, requests a protective order. At issue is whether and to what extent respondent is entitled to conduct examinations under SCPA 1404.

Published on: January 3, 2014

Creditor Requests for Ancillary Letters of Administration

by Stephen Bilkis

A New York Probate Lawyer said that, a person claiming to be a creditor of the decedent applies for the issuance to him of ancillary letters of administration. It is conceded that the decedent was domiciled in Ohio, and that letters of administration were issued by a competent tribunal of that State to another person. The petition alleges that the decedent left personal property in New York consisting of ‘Royalty contracts of United Music Corporation.’ The Ohio administrator submitted an answer on September 18, 1962, alleging that there are no assets of the decedent within the State of New York. He does admit the contract between the decedent and United Music Corporation, ‘a publisher in the County of New York’, but he makes the somewhat ambiguous allegation that ‘no revenue or income’ was at that moment due the estate except ‘some writers’ royalties.’ He also asserts that there is no need for ancillary administration because, in his status as domiciliary administrator, he has been collecting the royalties due under that contract, and has experienced no difficulty in the prompt collection of them. He denied knowledge or information as to the validity of the petitioner’s claim, and he requested that if ancillary letters are to be issued, they be issued to him. The Public Administrator asserted that his right to letters were superior to that of the petitioner and requested the issuance of letters to him. During the proceeding the petitioner conceded the superior right of the Public Administrator to letters. The matter was placed upon the calendar for hearing of the contested issue as to the existence of any asset in New York County.

A New York Will Lawyer said that, after the matter was placed upon the hearing calendar, the Ohio administrator attempted to avoid meeting that issue by going through a form of sale of all the decedent’s rights under the contract. In October, 1962 he applied to the Ohio court for permission to sell all of the decedent’s interest in the musical composition ‘Huckle Buck’, which is the composition published by United Music Corporation, and he obtained judicial permission to sell it ‘at the best price obtainable’. No mention was made in that application of the proceedings in this court or of the petitioner’s claim. On October 31, 1962, the Ohio administrator signed an instrument which purports to transfer to a third person all of the decedent’s interest in the composition, the copyright thereto, and any extension and renewal. The consideration recited in that instrument is $2,500 and payment of that sum to the Ohio administrator was proven.

A Nassau County Probate Lawyer said that, an officer of the United Music Corporation was called as a witness by petitioner. It appears that the decedent had assigned to that corporation all of his interest in the composition, and the corporation agreed to pay specified royalties. Royalties were regularly paid during the decedent’s lifetime, and up to the end of June 1961. In August, 1961, the sum of $2,137.68 was paid to the estate, presumably for the period ending June 30th. The witness testified that royalties were being held by the corporation and that for the period July 1, 1961 to December 31, 1962, the accrued royalties amounted to $2,729.73. There was a lack of agreement among counsel as to how long the copyright still has to run, and definitive proof on that question was not submitted. It appears, however, that the copyright is still in existence. We do not have proof of the precise amount of accrued royalties on October 31, 1962. That figure was always obtainable by the administrator from United Music. The only figure near that date is the $2,729.73 accrued on December 31st, just two months later. Thus it is clear that in this hasty sale, the Ohio administrator sold for $2,500 the estate’s interest in accrued royalties of an approximately equal sum and also all of the estate’s future interests in the musical composition, the royalties, the copyright and any extension or renewals. If the sale is a bona fide sale, it was an incredible bargain for the purchaser, who not only bought nearly two thousand eight hundred dollars at a discount but all rights to future royalties.

Published on: January 3, 2014

Case Issue is Whether Court Erred in Denying Probate of a Will

by Stephen Bilkis

A New York Probate Lawyer said that, the decree denying probate to the propounded instrument reserved for determination by supplemental decree all applications for costs, allowances, and fees. The attorney for petitioner who claims to be the sole statutory distributee of the decedent, asks the court to fix his reasonable compensation and costs and to direct payment from the general estate. The attorney did not proceed in the manner required by section 231-a, Surrogate’s Court Act, and hence his application must be based upon section 278. He is not entitled to costs or an allowance under that section. Even if he had proceeded under section 231-a, he would not be entitled to have his fee paid out of the general estate for he rendered no services of benefit to the estate. His services were solely for the benefit of his individual client.

A New York Will Lawyer said that, the position of the client was, as the attorney states, as anomalous one. A 1918 will has been admitted to probate in British Honduras ‘until a later Will be found’. A 1955 instrument was offered for probate here as a lost will. It was to the interest of the alleged distributee that the 1955 instrument be proved to have been duly executed (thus revoking the 1918 will), but that it be denied probate on the ground that it was not in existence at the time of the decedent’s death. The attorney was thus partly on one side in the contested probate proceeding and partly on the other side. He accordingly filed no pleading and took no active part in the contest. Before submission of the case to the jury he made motions appropriate to his client’s interests. He was otherwise quiescent, hopeful that the contending factions would destroy each other. The verdict of the jury was against the proponent on the question of the making of the will.

A Queens Probate Attorney said that, the attorney’s present contention that he represents a party who has succeeded in the contest is contrary to the record herein. He attempted to serve only his own client’s interests, he rendered no services of benefit to the estate and he was not successful insofar as his client’s cause is concerned. There is no basis for allowing him costs, compensation or allowance out of this estate. The attorney for the proponent in the probate proceeding request an allowance for their services. In prohibiting an award of costs to an unsuccessful contestant in a probate proceeding, section 278 explicitly excepts from that prohibition one ‘named as an executor in a paper propounded by him in good faith’, and it further affirmatively provides that ‘where a person named as the executor in a will propounds the will for probate, such person so named as executor may, whether successful or not, in the discretion of the surrogate, be awarded costs and all necessary disbursements made by him and all expenses incurred in the attempt to sustain the will.’

Published on: January 2, 2014

Court Discusses the Issuance of Premliminary Letters Testamentary

by Stephen Bilkis

A New York Probate Lawyer said that, a motion and cross motion places in issue the rights of persons interested in this estate to obtain discovery from the preliminary executor pursuant to subdivision 4 of SCPA 1412. In 1963, based upon the recommendation of the Bennett Commission, the Legislature created a new type of letters called “preliminary letters testamentary” and a new fiduciary office called “preliminary executor”. SCPA 1412 describes in detail the powers and limitations of such office and the expeditious procedure by which such letters may be obtained. Before this new fiduciary office was created, when pressing matters of estate administration arose in the course of a delayed probate proceeding, the nominated fiduciary could be involved procedures obtain letters of temporary administration, a fiduciary office with rather limited powers.

A New York Will Lawyer said that, when it was originally enacted as SCA 153-a, as well as now, SCPA 1412, contained a subdivision which provided: “The court may limit preliminary letters testamentary to the receipt of assets specified in an order and may prohibit the collection of any other assets of the decedent, may make such directions as it deems proper and necessary in respect of the custody and preservation of all papers of the decedent and for making them available for examination and copying by any person or persons interested in the estate or may limit and restrict the person named in such letters in any manner that the court deems advisable for the effective protection of the rights of all persons who may have an interest in the estate of the decedent” (now subd. 4 of SCPA 1412).

A Queen Probate Attorney said the issue in this case is the construction of the phrase giving the court in issuing preliminary letters discretion “to make such directions as it deems proper and necessary in respect of the custody and preservation of all papers of the decedent and for making them available for examination and copying by any person or persons interested in the estate”.

Published on: January 2, 2014

Court Determines if Corporation is Sole Surviving Trustee of Estate

by Stephen Bilkis

A New York Estate Lawyer said that, the testator, while a resident of New York, executed a will in 1904 and a codicil thereto in 1911. He died a resident of Rhode Island in 1912 and the aforesaid instruments were admitted to probate as his will in that state. A New York Banking Corporation became successor trustee under the will in 1918 by appointment of the then surviving trustees.

A New York Probate Lawyer said that, an accounting was had in Rhode Island in 1948 and the accounts of the banking corporation and an individual trustee were settled by a decree made on February 7, 1949. The instant proceeding is brought by the corporation as sole surviving trustee for the settlement of its accounts for a period subsequent to June 21, 1948 and for construction of the will. Other issues have been raised by respondents but it has been stipulated that the construction question shall be disposed of as a preliminary issue.

A New York Will Lawyer said that, certain testamentary trusts have terminated and remainder interests therein are payable pursuant to a direction of the testator which he expressed in the following language: to the Rector, Church Wardens and Vestrymen of St. Thomas’ Church in the City of New York, for the purpose of erecting and maintaining, in such place as they may select, a building or buildings for the care of persons suffering from tuberculosis, to be called the Scott Memorial Home.’

Published on: January 1, 2014

Estate Bill Come in After Estate Assets have been Distributed

by Stephen Bilkis

A New York Probate Lawyer said that, the claim of the City of New York in the total sum of $1,792 has been established. That sum was for hospital care furnished the decedent by the City of New York. The executor has rejected the claim for the reason that the bill was first sent to him by the City more than seven months after issuance of letters and after he had distributed the assets of the estate.

A New York Will Lawyer said that, the decedent died on January 18, 1960 at one of the hospitals maintained by the City of New York. He owned securities which he had directed his brokers to sell early in 1960, apparently at the request of city officials. The proceeds, in the form of a check in the sum of $4,743.54, were sent to him in care of the hospital Property Office but the decedent was not physically able to endorse the check and he died a few days later. The hospital delivered the check to the Public Administrator of the County of New York, who turned it over to the executor after he had qualified.

A Bronx Probate Attorney said that, the decedent had no relatives within the State. His will was filed in this court on July 18, 1960, but a petition for its probate was not filed until March 20, 1961 and it was admitted to probate on July 12, 1961, approximately eighteen months after the decedent’s death. The City’s investigators appear to have checked the court records for an estate several times in the year 1960, but to have made no further check of the records until May, 1962.

Published on: January 1, 2014

Decedent’s Widow Seeks to Revoke Preliminary Letters Testimentary

by Stephen Bilkis

A New York Probate Lawyer said that, in the pending probate proceeding, the decedent’s widow has sought to revoke the preliminary letters testamentary issued to the decedent’s sisters, the nominated executrices under the will, and to disqualify the sisters from appointment as executrices. The sisters have questioned the status of the widow and have sought a construction of the decedent’s will. The widow has cross-moved for summary judgment and for an accounting. The parties are also disputing the ownership of the contents of the decedent’s safe deposit box. A hearing was held with respect to the issues of the widow’s status and the ownership of the safe deposit box contents.

A New York Will Lawyer said that, the decedent died on May 20, 1980, at eighty years of age. He left a will, dated January 19, 1973, which has been offered for probate. The decedent’s will provides a bequest to his wife, of “all my furniture, furnishings, automobiles and all my other household goods and effects.” The will then give a $2,500 legacy to the decedent’s brother, and gives all of the decedent’s “jewelry and articles of personal adornment”, in equal shares, to the decedent’s sisters. The will then provide as follows: “SIXTH: I give and bequeath to my wife, if she survives me, such part of my estate as my wife would have received had I died intestate domiciled in the State of New York. In the event that my wife, shall die with me in a common accident or disaster, or under such circumstances as to make it impossible or difficult to determine which of us died first, or within sixty (60) days after my death, I direct that my wife shall be conclusively deemed not to have survived me. “SEVENTH: In the event that my wife, shall predecease me, or shall be deemed not to have survived me in accordance with the provisions of paragraph “Sixth”, all property, of all kinds, wherever situated, belonging to me at the time of my death, shall pass in accordance with the provisions of paragraph “Eighth”. “EIGHTH: All the rest, residue and remainder of the property which I own at my death I devise and bequeath to my sisters, or the survivor. If neither of said sisters of mine shall survive me, I devise and bequeath my residuary estate to my brother.”

A Westchester County Probate Lawyer said that, the decedent’s two sisters are named as executrixes under Article NINTH of the will. The proof adduced at the hearing established the following facts concerning the status of the decedent’s wife who claims to be the decedent’s widow. The decedent married his wife on September 10, 1963 in Greenwich, Connecticut and a valid marriage certificate is in evidence. The decedent and his wife lived together as husband and wife continuously from the date of their marriage until the decedent’s death in 1980. The decedent had been married twice before. The second marriage ended with the death of the wife in 1960. The first marriage terminated by divorce decree dated January 18, 1943 issued by the Supreme Court, County and State of New York which provided that:

Published on: December 31, 2013

Court Rules on Will Construction

by Stephen Bilkis

In this Estate Litigation case, the executor of the decedent’s estate has instituted this proceeding for construction of the decedent’s will.

A New York Probate Lawyer said that the testator, a resident of Paris, France, albeit a citizen of the United States died in March 1966. The value of his gross estate located in New York County at the time of his death was approximately $88,000. In addition there must be included in his estate for estate tax purposes a trust valued at approximately $2,500,000 over which he had a general testamentary power of appointment.

The power of appointment was derived by the decedent from his wife, also a resident of France and a citizen of the United States who died in April 1963 leaving a will which was admitted to probate in this court. A New York Will Lawyer said under her will a marital deduction trust was created of one-half of her residuary estate with the income thereof payable to the decedent for life.