Wills

Published on: May 12, 2014

Court Asked to Rule on the Issue of Kinship

by Stephen Bilkis

A New York Probate Lawyer said that, in this accounting by the Public Administrator of Nassau County as administrator of the decedent’s estate, the issue of kinship was referred to a referee pursuant to SCPA 506. All parties stipulated to waive the report of the referee and to allow kinship issues to be decided by the court based upon the transcripts of the hearing, the documentary evidence and the arguments made by the attorney for the claimants and the guardian ad litem representing the interests of missing and unknown persons. Also before the court is the settlement of the Public Administrator’s account for the period from August 26, 2005 to August 31, 2007, as brought current through August 31, 2009, as well as the legal fees of the guardian ad litem. The guardian ad litem has filed a report dated April 23, 2010 in which she states that she has no objections to the account as brought current and which she finds to be complete. In her report, the guardian ad litem also makes certain conclusions regarding kinship that are discussed below.

A New York Will Lawyer said that, the decedent died intestate, a resident and domiciliary of Nassau County, on August 26, 2005. Letters of administration issued to the Public Administrator on October 7, 2005. The account, as brought down to date, shows total charges of $621,723.92, total credits of $147,469.51 and a balance on hand of $474,254.41. Objections to the account were filed by two individuals who claim to be distributees of the decedent. They objected to 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 asked for a hearing to establish kinship.

The issue in this case is whether the claimant’s objection to 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 asked for a hearing to establish kinship should be granted.

Published on: May 11, 2014

Petitioner Moves for Formal Accounting in Estate Litigation

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, died a resident of Nassau County on December 28, 2010, survived by his sister, the petitioner; and by his brothers respondent and movant herein, and. The decedent’s last will and testament dated May 23, 2000 was offered for probate by the petitioner, who is named as the sole beneficiary of the decedent’s residuary estate, as well as the executrix in the propounded instrument. Preliminary letters testamentary issued to the petitioner by order of this court on January 13, 2011. Respondent and the movant have filed objections to probate of the will.

A New York Will Lawyer said that, the disputes presently before the court all relate to a supermarket, which was run by the decedent and his brother. The supermarket, located at 601 Old Country Road in Plainview, New York, is comprised of three separate closely held corporations: (1) 601 Corp., which operates the grocery and dry goods business within the supermarket, and was owned by decedent and his brother as equal 50% shareholders; (2) Captain Joe’s Fish Corp. (Captain Joe’s), which sells fish and seafood at John’s Farms, and was owned by decedent and his brother as equal 50% shareholders; and (3) BNC, which operates a meat market within John’s Farms, which was owned wholly by decedent.

A Nassau County Probate Lawyers said that, the decedent’s sister commenced a SCPA 2103 discovery proceeding against respondents and the CPA as the accountant for John’s Farms, in order to, inter alia, prevent the decedent’s brother interference with the operation of BNC and to compel him to turn over the cash receipts of BNC from the date of the decedent’s death to the present; to prevent him interference with the petitioner’s right to take part in the management of Captain Joe’s and 601 Corp. and to gain full access to the records of those corporations; to compel the brother to make available to the petitioner the books and records of the decedent, BNC, 601 Corp. and Captain Joe’s; and to compel the brother to turn over the computer and other items he took from the decedent’s home.

Published on: May 10, 2014

Court Decide Issue of Estate Tax in Estate Case

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, died on January 4, 2006, survived by two children, the petitioners herein. A purported will dated July 16, 2003 and codicils dated September 29, 2004 and April 5, 2005 (herein collectively referred to as the “purported will”) have been offered for probate by respondents who are nominated as executors thereunder. By order dated April 5, 2006, A New preliminary letters testamentary issued to respondents. The purported will bequeaths the residuary estate to The Sunshine Foundation. The Sunshine Foundation is a charitable organization which was founded by the decedent during her lifetime. The preliminary executors are also the trustees of The Sunshine Foundation.

A Nassau Estate Administration Lawyer said that, at the time of her death, the decedent owned a 1% general partnership interest and a 50% limited partnership interest in Hewlett Associates. Article TENTH of the purported will provides as follows with respect to the decedent’s limited partnership interest in Hewlett Associates: “TENTH: If at the time of my death I own a limited partnership interest in Hewlett Associates, I direct that as soon after my death as may be practicable, my Executors (subject to the terms and conditions of the Partnership Agreement of Hewlett Associates) shall offer in writing (the “Offer”) to each of my children, the option to purchase for cash up to one-half (½) of said limited partnership interest that I may own at my death, at its value as finally fixed and determined for federal estate tax purposes after independent appraisal. If either such child desires to exercise his or her option to purchase said limited partnership interest, he or she shall notify the Executors in writing by certified mail, return receipt requested, within fifteen (15) days after the date of the Offer that he or she exercises his or her option to purchase said limited partnership interest. The closing of the purchase of said limited interest shall occur within sixty (60) days after the date of the Offer at a place designated by the Executors. If either of my said children shall not exercise his or her option to purchase all of his or her portion of said limited partnership interest, the other child may purchase the remaining portion, subject to the same terms and conditions set forth in this Article TENTH hereof.”

A Westchester County Will Lawyer said the decedent also created a revocable trust, under an agreement dated July 16, 2003, between herself as grantor and herself, respondents, as trustees. The trust provides that upon the grantor’s death, the remaining trust principal is to be paid over to The Sunshine Foundation. The decedent’s husband, died on May 4, 1990, leaving a will dated May 26, 1982, which was admitted to probate by this court on May 29, 1990. Under Article THIRD of the decedent’s husband will, a marital deduction trust was created for the benefit of his wife.

Published on: May 9, 2014

The Issue in this Case is Whether Petitioner’s Petition for Reconveyance Should be Granted.

by Stephen Bilkis

A New York Probate Lawyer said that, petitioners are who are, respectively, the suspended co-executor and the temporary co-administrators of the Estate of the decedent (hereinafter the estate). Respondent is the suspended co-executor of the estate. Petitioners commenced these proceedings to remove respondent as co-executor and to surcharge him for his self-dealing with respect to an estate asset consisting of a partial interest in a limited partnership known as North Shore Mart. Petitioners appeal and respondent cross-appeals from an order of Monroe County Surrogate’s Court, which, following a reference of factual issues on respondent’s accounting, confirmed the report of the referee and made additional determinations on issues not addressed by the referee.

A New York Will Lawyer said that, insofar as pertinent to this appeal, the Surrogate ordered respondent to reconvey to the estate administration a 36.4285% interest in North Shore Mart; ordered that such reconveyance be in the nature of a limited partnership interest rather than a general partnership interest or tenancy in common; denied the estate’s request for reconveyance of an additional 6.0715% interest in the partnership; awarded the estate a judgment of $1,152,645.82 plus interest, representing (after offset) the estate’s interest (36.4285%) in amounts diverted by respondent from the partnership to himself and his wife; denied without prejudice the estate’s claim to recover tax benefits (for partnership losses) that the estate would have realized but for respondent’s misappropriation of its interest in the partnership; denied the estate’s request to recover for the unnecessary interest expense incurred by the partnership as a result of his diversion of partnership assets; deferred the estate’s request for an award of attorney’s and accountant’s fees; denied the estate’s request for an award of punitive damages; denied the estate’s request for costs and disbursements; and ordered respondent to pay one-half of the referee’s fees.

A Long Island Probate Lawyer said that, on appeal the estate contends that it is entitled to reconveyance of a 42.5% interest in North Shore Mart; that such reconveyance must be in the form of a general partnership interest or tenancy in common; that it is entitled to a judgment equal to 42.5% of amounts diverted from the partnership by respondent; that the estate is entitled to other amounts, including a proportionate share of interest paid as a result of unnecessary borrowing by the partnership and compensation for tax benefits the estate would have realized but for respondent’s misappropriation; and that it is entitled to additional relief, including attorney’s and accountant’s fees, punitive damages, referee’s fees, and costs and disbursements. On his cross appeal, Saul challenges the Surrogate’s award to the estate of a money judgment and of an interest in the partnership at its present value.

Published on: May 8, 2014

Fraud Alleged in Will Contest Proceeding

by Stephen Bilkis

A New York Probate Lawyer said the complainant alleges that she, along with her father and sister are joint tenants with rights of survivorship in a brokerage account maintained at a Securities Company. The account at the Securities Company was transferred to a joint account in a Financial Services Company. The complainant alleges that the joint account assets were transferred without her authorization to an individual account in the name of her father. She contends that the joint account holders’ written transfer authorization contained her forged signature. Two years later, her father died. In her complaint, the complainant wants to recover her lawful share of the funds in the joint and individual accounts.

A New York Will Lawyer said the defendant sister filed a Petition in the Surrogate’s Court for the probate of the decedent’s Last Will and Testament. The complainant was cited in the probate proceeding because she was adversely affected by the Will. The complainant took nothing under the Will. The complainant filed Objections to Probate of the Will in June, 2008. After conducting documentary discovery concerning the Will, the sister and the complainant entered into a Settlement Agreement pursuant to which the complainant executed a Withdrawal of Objections to Probate and Consent to Probate. The County Surrogate’s Court then issued a Decree admitting the Will to probate and issued Letters Testamentary to the sister. The consideration passing to the complainant under the Settlement Agreement consisted of personal property with respect to which the complainant claimed ownership. The parties agreed that the consideration referenced in the Agreement satisfied any right that the complainant had to any bequest, legacy, or other entitlement to the property of the Decedent or the Estate, wherever located. The complainant waived an accounting. The parties executed mutual general releases.

Bronx Probate Lawyers said the general release that the complainant executed in favor of her sister individually and in her fiduciary capacity may not be changed orally. The sister-in her individual and fiduciary capacity-executed a mutual release in favor of the complainant. The parties to the Settlement Agreement also agreed that the County Surrogate’s Court shall retain continuing jurisdiction in order to carry out, construe and enforce any of the terms of the Agreement.

Published on: May 7, 2014

Court Addresses Calulation of Life Estate Interest

by Stephen Bilkis

A New York Probate Lawyer said the Incapacitated Person is 95 years of age, having been born on December 8, 1914. On March 1, 2004, he transferred his fee ownership interest in the Glen Head, New York real property in which he resided to his daughter, while retaining a life estate in same. Based upon the date of the transfer, this gift is beyond any applicable look-back period for purposes of determining Medicaid eligibility pursuant to the Deficit Reduction Act of 2005.

A New York Will Lawyer said the parties concede that it was the intention of the Incapacitated Person, with the consent of two of his grandsons (as heirs-at-law of the daughter), for the Incapacitated Person to remain in the real property for the balance of his lifetime. However, when his funds dwindled, his needs increased, and a third grandchild (who had declared bankruptcy) declined to authorize a reverse mortgage on such real property, the Guardians were left with no other option but to permanently relocate the Incapacitated Person to a skilled nursing facility. Thankfully, he has acclimated well despite his advanced age and severe dementia.

Following the relocation of the Incapacitated Person, the Guardian for the Property Management and the Co-Executors of the Estate of the daughter entered into a Contract of Sale to extinguish the life estate interest of the Incapacitated Person and to sell the real property to third parties for the price of $520,000.00. Based on the written appraisals of a New York State Certified Residential Real Estate Appraiser, spanning a period of NINE (9) MONTHS, the selling price is approximately $20,000.00 above the appraised market value.

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.