Wills

Published on: March 23, 2014

Court Hears Case Regarding Validity of Will

by Stephen Bilkis

On 16 June 2006, the decedent, LS, died and was survived by his wife, MS, and his brother, WS. Allegedly, he left a will dated 11 October 1967. Under the will, the residuary must be equally shared by LS’ mother, H, and his brother, WS, and if either individual predeceased, his or her share to the surviving beneficiary. H predeceased.

A New York Probate Lawyer said that consequently, the will was offered for probate. MS objected to the will’s admission. WS, the brother of the decedent, in turn, moved for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the propounded instrument to probate on the ground that it is genuine and was duly executed, or, in the alternative, admitted to probate under the ancient document rule of evidence.

The objections:

Published on: March 22, 2014

Court Analyzes Will Due to Allegations of Undue Influence

by Stephen Bilkis

A New York Probate Lawyer said that the complainant moves to dismiss the objections filed contending that they are not legally cognizable. A deceased woman’s last will and testament nominated the accountant, her brother, as administrator of her estate and made him the beneficiary of the residuary that comprised 49% of the estate. The deceased’s son, who received a 35% share of the estate in trust, contested the will which was denied after the jury found the proponent had exercised undue influence. Preliminary letters then issued to the complainant were subsequently revoked.

A New York Will Lawyer said sources revealed that the first objection interposed to the account must be dismissed as legally insufficient. Further, no statute compels a fiduciary, prior to judicial settlement of his account, to make application to charge the estate with counsel fees acquired in offering the will for probate with the exception of an attorney-fiduciary who does not have at least one co-fiduciary who is not rendering legal services. Furthermore, an affidavit of services having been filed, the opponent’s claim that no documentation of the services rendered was presented lacks merit.

Queens Probate Attorneys said the center of the controversy revolves about the second objection which asserts the preliminary administrator has no right to recover commissions, or to charge the estate with counsel fees he incurred as the unsuccessful proponent.

Published on: March 21, 2014

Petitioner Alleges Undue Influence Regarding Will Execution

by Stephen Bilkis

A New York Probate Lawyer said that, in this contested probate proceeding, the proponent, the daughter of the decedent, moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the propounded instrument dated June 25, 2007 to probate. The objectant, who is the son of the decedent, cross-moves for summary judgment denying probate to the propounded will dated June 25, 2007.

A New York Will Lawyer said the decedent, died on August 2, 2008, survived by four children. The decedent’s wife, predeceased the decedent, as did his daughter. The will offered for probate provides a $25,000.00 bequest to his son; the remaining amount of a private mortgage held by decedent for property located at 225 Hillside Avenue, Douglaston, New York is to be divided evenly among his daughters and the residuary is to be divided evenly among them. The will nominates the proponent as executor.

A Westchester County Probate Lawyers said that, the objectant has interposed the following objections to the propounded instrument: “1. the instrument propounded is not the last will and testament of the decedent. 2. The instrument is not the last will and testament of the decedent in that the signature affixed thereto, alleged to be the signature of decedent, is not, in fact, decedent’s signature. 3. The instrument offered for probate was not duly executed by the decedent in that he did not affix his signature at the end thereof, nor was such signature made by the decedent in the presence of each of the attesting witnesses, or acknowledged by him to have been made, to each of the attesting witnesses, nor did the decedent declare the instrument to be his last will, nor did at least two attesting witnesses each sign their names to said instrument as a witness at the end thereof at the request of the decedent and in his presence. 4. The instrument offered for probate was not duly executed by the decedent in that he did not publish the same as her will in the presence of the witnesses whose names are subscribed thereto and that the said alleged witnesses did not sign as witnesses in his presence or in the presence of each other. 5. The instrument offered for probate was not freely and voluntarily made by the decedent. Upon information and belief, the instrument, and the signature thereto, was obtained and procured by fraud, duress and/or undue influence practiced upon the decedent by the proponent or by other persons acting in concert or privity with her whose names are presently unknown to respondent. 6. That on the 25th day of June, 2007, the said decedent, was not of sound mind or memory and was not mentally capable of making a will. 7. Said instrument purported to be the last will and testament of the decedent, was revoked, because decedent executed a second original will on the same day he executed the instrument being offered in this probate proceeding, and only said instrument has been produced and offered for probate.”

Published on: March 20, 2014

Court Listens to Probate and Discovery Proceeding

by Stephen Bilkis

A New York Probate Lawyer said that, before the court are a probate proceeding and a discovery proceeding. The decedent, died on June 14, 2008 a resident of Nassau County, survived by her four adult children. Decedent had been married for fifty (50) years. They divorced in April 2001. At the time of her death, decedent resided in property located at 55 Chestnut Hill, Roslyn, New York.

A New York Will Lawyer said that, these proceedings arise out of the same facts and involve four (4) documents. Decedent and her husband executed a joint will dated December 20, 1993. The joint will provided in relevant part the following: SECOND. Upon the death of one of us, leaving the other of us surviving, the entire estate of the one dying first and all property of which she or he has power of disposal, whether owned jointly or severally, is hereby given to the survivor, upon the condition, however, that whatever remains of the above estate after the death of the survivor shall be given as set forth herein Paragraph Fourth hereof. Paragraph FOURTH created a trust for the benefit of the testator’s grandchildren and an outright bequest. The will further provided: FIFTH: We have mutually agreed upon the foregoing disposition of our property, and, in consideration thereof, it is further mutually agreed by both of us that this Will shall be forever binding upon both of us and upon the estate of each of us, and shall bind our legatees, distributes (sic) and representatives. We further mutually agree that this Will shall be irrevocable and shall not be modified or revoked by either of us or by the survivor of us, except that it may be revoked or modified only by a writing subscribed by both of us and executed by both of us with the formality of a Will. SEVENTH: Upon the death of one of us leaving the other surviving, the survivor is hereby appointed executor or executrix of the estate of the one dying first; and upon the death of both of us.

A Bronx Probate Lawyer said that, decedent and her husband entered into a Marital Settlement Agreement in January 2001 which provided, in part, that: 7. The Husband and Wife have heretofore executed a Joint Irrevocable Last Will and Testament in New York, which is again reaffirmed by the parties as their Last Will and Testament, and both parties agree to maintain and support the obligation and covenants made therein and further agree not to attempt to Revoke such Last Will and Testament. Decedent and her husband owned two residences; one was a condominium in Boca Raton, Florida, the other, a condominium in Roslyn, New York. The Marital Settlement Agreement provided that Jerome acquired title to the Florida property and the decedent acquired the Roslyn property.

Published on: March 19, 2014

Court Decides Case Regarding Accounting of Estate

by Stephen Bilkis

A New York Probate Lawyer said that, in this probate proceeding, counsel for the executor has objected to a request from the court’s accounting department for the payment of an additional fee of $625.00 pursuant to 22 NYCCR 207.20 [d] upon the executor’s required filing of his “List of Assets – Inventory”. The additional payment was requested based upon the inclusion in the completed form of real property located in North Carolina. The executor excluded that property from the gross value of the estate as reported on the probate petition (when the value based fee was initially calculated) because the form for that petition arguably required that improved and unimproved real property be listed only if it is located in New York State.

A New York Will Lawyer said the issue in this case is whether the court’s accounting department erred in requesting for the payment of an additional fee of $625.00 pursuant to 22 NYCCR 207.20 [d].

Pursuant to the language of SCPA 725, the Uniform Rules provide for the filing of the List of Assets – Inventory (22 NYCCR 207.20 [a]). That rule states in part: [a] The fiduciary or the attorney of record shall furnish the court a list of assets constituting the gross estate for tax purposes, but separately listing: [1] those assets that either were owned by the decedent individually including those in which the decedent has a partial interest, or were payable or transferrable to the decedent’s estate; and [2] those assets held in trust, those assets over which the decedent had the power to designate a beneficiary, jointly owned property, and all other non-probate property of the decedent. This list of assets shall be filed with the court by the latter to occur of the following events: Subsections [c] and [d] are also relevant to the analysis: [c] In the event such list of assets is not so filed, the court may refuse to issue certificates, may revoke the letters and may refuse to issue new ones until such list has been filed and the fees paid as provided in SCPA 2402. Failure to voluntarily file such list of assets may also constitute grounds for disallowance of commissions or legal fees. [d] If any additional filing fees are due, they shall be paid to the court at the time of the submission of any of the documents described in subdivision [a] of this section.

Published on: March 18, 2014

Court Decides Validity of Social Services Claim

by Stephen Bilkis

A New York Probate Lawyer said that, this is a proceeding brought by the executor of the estate of her father, to determine the validity of a claim made by the Nassau County Department of Social Services against the estate for public assistance rendered to wife of the decedent, from June 10, 1996 to October 3, 2002, while he was still alive. The couples had two children, who is mentally retarded. On August 11, 1972, the decedent was shot four times in what the executor described as a “bungled mob” assassination attempt. According to newspaper articles, the gunman mistook the decedent and three others for the mobsters he intended to kill. The decedent suffered serious injuries that left him unable to work for the remainder of his life. He began receiving Social Security disability benefits in January 1976 and, also received a Worker’s Compensation award.

A New York Will Lawyer said that the, wife was diagnosed with Alzheimer’s disease in 1992. On December 22, 1995, the decedent, as attorney-in-fact for his wife, executed an “Assignment to Petition the Court for Support Pursuant to 18 NYCRR 360-3.2.” It states that, in consideration of the medical assistance and care provided and to be provided to the wife by the New York State and Nassau County Departments of Social Services, she assigned to the Nassau County Department of Social Services (DSS) “so much of her right, title and interest to petition the court for support from my legally responsible spouse.” The decedent as the wife’s spouse, executed a “Declaration of the Legally Responsible Relative” on January 4, 1996. It states, “I, declare that I refuse to make my income and/or resources available for the cost of necessary medical care and services for the Medicaid applicant/recipient listed above.”

A Staten Island Probate Lawyer said the wife began receiving Medicaid on June 10, 1996 when she was placed in a nursing home. The record before the court includes a “Medical Assistance Institutionalized Spouse Budget Worksheet,” which was signed on March 11, 1997 by a representative of DSS. The worksheet bears the date of March 12, 1997 and lists the date of application as April 18, 1996.

Published on: March 16, 2014

Court Discusses Reasonable Attorney’s Fees in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that, submitted for decision in this accounting proceeding are the issues of (i) attorney’s fees; (ii) accountant’s fees; and (iii) commissions. The decedent, died on February 26, 1996, a resident of Nassau County, leaving a will dated March 9, 1984. The will was admitted to probate by decree dated May 18, 2004, and letters of administration issued to the Public Administrator on the same date. The summary statement shows charges to the accounting party of $289,650.33. This is the Public Administrator’s first and final accounting. The decedent’s will, after the payment of a $2,000.00 bequest to Mercy Hospital, Rockville Centre, New York, directs that the decedent’s residuary estate be paid to the Diabetes Association of New York, Inc. The Attorney General of the State of New York has appeared in this proceeding.

The issue in this case is whether the accounting matters in this probate proceeding should be granted.

A New York Will Lawyer said with respect to the issue of attorneys’ 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 is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.

Published on: March 15, 2014

Court Hears Estate Case Regarding Foreclosure Action

by Stephen Bilkis

A New York Probate Lawyer said that this is an action transferred to this court from Supreme Court, Nassau County, defendant Countrywide Home Loans, Inc. (Countrywide), one of several defendants, moves the court for an order dismissing the complaint as against Countrywide. 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 Will Lawyer said that, this action emanates from a foreclosure proceeding involving property located at 198-200 Wellesley Street, Hempstead, New York. That property was owned by the decedent who died intestate on July 13, 1986. Her brother, administered her estate as voluntary administrator pursuant to SCPA Article 13. It appears, although it is not entirely clear, that her brother was the decedent’s sole distributee and that the subject property vested in him immediately upon his sister’s death. The brother then died testate on June 9, 1994. An administrator was appointed the voluntary administrator of his estate. The court’s file contains his original will which devises and bequeaths all of his property to his cousin. He died August 1, 2000. There was no deed executed from the estate of the decedents, nor was there a deed from the estate of the brother. Although the brother original will was filed in the court by Calhoun incident to the voluntary administration of the estate of the 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.

A Long Island Probate Lawyer said that, the underlying action by plaintiffs is to vacate the tax lien foreclosure sale, the deed by which the current owners of record, defendants, obtained title, and the mortgage placed on the property by the defendant Countrywide incident to the purchase of the property by defendants. Plaintiffs contend that as the fee owners of the subject property at the time the foreclosure action was commenced, they were entitled to notice of the proceeding and the failure to provide that notice requires the vacating of the judgment in the foreclosure action and all subsequent deeds and mortgages.

Published on: March 14, 2014

Court Hears Case Regarding Probate with Foreclosure Involved

by Stephen Bilkis

In an action transferred to the court from Supreme Court, Nassau County, one of several defendants, a Home Loan corporation, moves the court for an order dismissing the complaint against it. Plaintiffs opposed such motion and cross-move for summary judgment dismissing the answer, or, in the alternative, striking its 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 decedent, 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 he was the sole distributee and that the subject property vested in him immediately upon his sister’s death.

A New York Will Lawyer said the distribute brother then died testate in June 1994. Herein petitioner was appointed the voluntary administrator of the brother’s estate. The court’s file contains original will which devises and bequeaths all of his property to his cousin. The latter died in August 2000. There was no deed executed from the estate of the decedent sister to the brother, nor was there a deed from the estate of the brother to the petitioner. Although the brother’s original will was filed in the court by petitioner incident to the voluntary administration of the estate of the brother, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the petitioner, the administrators of his estate, and claim to be his only distributees.

Published on: March 13, 2014

Petitioner Moves for Summary Judgment

by Stephen Bilkis

A New York Probate Lawyer said in an action transferred to the court from Supreme Court, Nassau County, one of several defendants, a Home Loan corporation, moves the court for an order dismissing the complaint against it. Plaintiffs opposed such motion and cross-move for summary judgment dismissing the answer, or, in the alternative, striking its fourth and seventh affirmative defenses.

A New York Will Lawyer said that this action emanates from a foreclosure proceeding involving property located at Hempstead, New York. That property was owned by decedent, 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 he was the sole distributee and that the subject property vested in him immediately upon his sister’s death.

Manhattan Probate Lawyers said the distribute brother then died testate in June 1994. Herein petitioner was appointed the voluntary administrator of the brother’s estate. The court’s file contains original will which devises and bequeaths all of his property to his cousin. The latter died in August 2000. There was no deed executed from the estate of the decedent sister to the brother, nor was there a deed from the estate of the brother to the petitioner. Although the brother’s original will was filed in the court by petitioner incident to the voluntary administration of the estate of the brother, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the petitioner, the administrators of his estate, and claim to be his only distributees.