New York Probate and Estate Administration Lawyer Blog

Published on: June 28, 2021

Court rules that proof is required to establish joint bank account right of survivorship- In re Najjar, 2021 NY Slip Op 3777 (N.Y. App. Div. 2021)

by Stephen Bilkis

In this case, the Supreme Court of New York considered whether a joint bank account is estate property. It is commonly believed that with a joint bank account there is always the right of survivorship. This would mean that when one of the joint owners passes away, the proceeds of a joint bank account bypasses probate and automatically goes to the remaining joint owner. Under New York law, this is not the case.

In In re Najjar, the decedent and the respondent were joint owners of 4 bank accounts. The petitioner initiated estate litigation because she felt that money in the bank accounts was the property of the decedent alone and, upon her death, became the property of the decedent’ estate. The petition sought a declaration that the money in the joint bank accounts property belonged to the estate. Further, because the petition was also a co-executor of the decedent’s estate, the petitioner accused the respondent of unjust enrichment and breach of fiduciary duty. In response, the respondent sought summary judgment declaring that as the joint owner of the accounts, she was entitled to all of the money.

Under New York law, upon the death of one of the owners, ownership of the joint bank account does not automatically remain with the surviving owner. New York banking law states that a joint bank account creates a joint tenancy with right of survivorship only when the signature card for the account indicates the parties intended the right of survivorship to apply. Banking Law § 675 (a). In Najjar, the signature card did not have the right of survivorship designation. Thus, the respondent was not able to establish that under Banking Law § 675 there existed a statutory presumption of the survivorship.

Published on: June 1, 2021

Assets awarded from a wrongful death are not subject to a decedent’s creditors. In re Mcmillan-Hoyte, 2021 NY Slip Op 21090 (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

Estate administration has two main goals. One goal is to distribute the assets of a decedent according to the terms of their will. If there is no will, assets are distributed according to the law of intestate succession. The other goal is to pay the decedent’s debts as well as expenses related to estate administration. These two goals can be at odds with each other, particularly if there are not enough assets in the estate to pay all of the debts and also leave the beneficiaries and heirs with much or anything at all.

While the testator’s goal may have been to provide for their family or other beneficiaries, the law generally puts the interests of creditors ahead of the interests of beneficiaries and heirs. Creditors are paid first according to a statutory order of priority. Beneficiaries and heirs receive distributions only if there are assets left over in the estate after creditors are paid and after expenses of administrations are paid.

There are potentially several different types of debts owed by a decedent at the time of their death or expenses incurred during administration. Under SCPA § 1811(1), debt must be paid according to the following order of priority.

Published on: May 15, 2021

Court refused to overturn default judgment in an estate administrator appointment case. Buie v. Buie, 186 A.D.3d 1516 (N.Y. App. Div. 2020)

by Stephen Bilkis

Generally, when someone passes away, their estate must go through an administration process that starts with submitting the decedent’s will, if any, to the Surrogate’s Court, along what a petition for appointment of the administrator or executor. The law requires that interested parties must be notified that the estate is in the process of being opened, that a will has been filed, that someone is seeking to be appointed administrator of the estate. Interested parties must be notified so that they can be heard on matters related to the process, including the appointment of the administrator.

In Buie, the decedent died intestate in 2004. This means that she did not leave a will nominating someone to serve as the executor of her estate. As a result, based on a statutory order of priority, any interested party has the right to file a petition with the Surrogate’s Court to receive letters of administrator and move forward with the tasks required to settle the decedent’s estate.

The decedent was survived by 5 children. Twelve years later, in 2016, one of the decedent’s children, Deborah, filed a petition with the court for letters of administration for the decedent’s estate, which included a single-family house in Brooklyn and an adjacent vacant lot.

Published on: May 1, 2021

Court orders estate to pay overdue funeral expenses including substantial interest. In re Thompson, 70 Misc.3d 1223(A) (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

he purpose of the estate administration process is to settle the outstanding affairs of a decedent. This includes ensuring that the debts that the decent left behind and the expenses related to the administration of their estate are paid. Debts may include household bills, car loans, credit card bills, and taxes. Expenses include those related to attorney fees and other administration fees as well as those related to the funeral and burial of the decedent.

In fact, debts and expenses must be paid by the administrator of the estate before assets are distributed to beneficiaries or heirs. Because estates do not always have sufficient assets to pay outstanding debt and expenses, New York law sets forth an order of priority for their payment. The expenses that are required to be paid first before any other expenses or debts are funeral and burial expenses. SCPA § 1811(1).

In Thompson, the decedent died intestate. The court appointed administrator of the estate was her daughter. She contracted with a funeral home for the funeral and burial of the decedent. The cost was $12,410.00, but the estate did not have sufficient assets to cover the bill and the bill went unpaid. However, there was a pending wrongful death action that was eventually settled. The total amount of the settlement is unclear, but of the settlement, the court ordered $25,560.13 in escrow with respect to the outstanding funeral bill. While the bill was initially $12,410.00, it had grown to $25,560.13 because of the 24% annual interest assessed for late payment.

Published on: April 26, 2021

Court suspended administrators due to wasting assets. In re Steward, 2021 NY Slip Op 2395 (N.Y. App. Div. 2021)

by Stephen Bilkis

The administrator of an estate is a fiduciary. As such, they are held to a high standard of conduct. They must perform their responsibilities with care and make the interests of the estate a top priority. They must be trustworthy and must not self-deal. If an administrator violates their duty of care, their actions can be challenged in court. If the court concludes that the administrator was in breach of their fiduciary duty, potential consequences include reversal of the problematic transaction, suspension, or removal.

In In re Seward, on April 2, 2001, the decedent’s will was admitted to probate and letters of administration were issued appointing co-administrators. Nearly 20 years later, in September 2018, a petition was filed to revoke the letters of administration, to suspend the administrators as fiduciaries, and to appoint a new administrator. The petitioners alleged that the administrators had allowed the estate to languish for nearly 20 years. Further, the petition alleged that one of the administrators was acting against the interests of the estate.

New York law provides that the Surrogate’s Court can suspend or revoke letters issued to an estate administrator or other fiduciary. Reasons for suspending or revoking letters include evidence that the fiduciary wasted or misapplied assets, damaged estate property, removed property without approval, or failed to follow an order of the court. SCPA 711

Published on: March 15, 2021

Partition may the only remedy when siblings cannot agree on ownership and use of property. Baucom v. Young, 2020 NY Slip Op 33826(U) (N.Y. Sup. Ct. 2020)

by Stephen Bilkis

Settling the estate of a parent is difficult for children. It is even more difficult when the children do not agree on how to handle property that they inherit together as tenants in common.

In Baucom v. Young, Dorothy Baucom died intestate on January 24, 2013, leaving 3 adult daughters: plaintiff Cheryl T. Baucom and defendants Deborah Young and Charlene Baucom. Defendant Charlene is developmentally disabled, and Deborah is her caregiver. Under New York’s law of intestate succession, because Dorothy did not leave a will with specific instruction as to how her estate is to be distributed, her 3 daughters were entitled to inherit her entire estate in equal shares. The main asset in the estate was a three-story residential property in Brooklyn.

Ideally, the sisters would decide privately how to handle the property. For example, one option would be to agree to sell the property and divide the proceeds equally. Another option would be for one or two of the siblings to buy out the sibling or siblings who does not want to own the property. Unfortunately, the three siblings in this case were not able to agree on the fate of the house on their own.

Published on: March 15, 2021

Father who failed to support child is not an intestate heir of child. In re Lee, 2021 NY Slip Op 30984(U) (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

When a person dies without a will, they would have died intestate. When this happens, their estate is distributed according to New York’s law of intestate succession to those who are considered the decedent’s next of kin. Typically, this means that the decedent’s surviving spouse and children would inherit. In the absence of either, the decedent’s parents would inherit.

Because minors do not have the capacity to execute wills, when a minor passes away, their parents are typically first in line to inherit unless they are disqualified. Under New York law, on petition, a parent can be disqualified from inheriting if they failed to support the child. Under Family Law Act § 413, parents have an obligation to support their children.

In the case of In re Lee, the decedent was 14-years-old when she died by suicide. She left an estate. It is unclear how much her estate was worth or how the decedent received the property in her estate. She was survived by her divorced parents. Her mother, the custodial parents, was appointed the administrator of the decedent’s estate. The mother filed a disqualification petition to prevent the decedent’s father from being named an intestate heir and inheriting from the decedent’s estate. The father opposed the disqualification petition on the ground that he was unable to pay more support than he did.

Published on: March 1, 2021

Medical records raise questions of the reliability of witness testimony in a testamentary capacity case. In re Ramirez, 68 Misc.3d 1207(A) (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

Under New York law, for a will to be valid, the person making the will, known as the testator, must have been of “sound mind and memory” at the time the will was executed. Testamentary capacity refers to the mental ability of the testator to understand the meaning and impact of signing a will.

In In re Ramirez, the will of decedent Ulysses Ramirez was submitted for probate by his surviving spouse, Francesca. Francesca was Ulysses’ fourth wife. He was also survived by 2 adults sons from prior marriages, David and Mikhail. The decedent died on April 23, 2018, less than a year after he met Francesca. At the time he met Francesca, he was being treated for terminal prostate cancer. About 7 months after he met Francesca, Ulysses left the home he was living in with Mikhail and moved in with Francesca. Francesca and Ulysses were married in December 2017. He executed a new will on April 14, 2018, leaving all his property to Francesca and naming her the executor. The estate included his condominium where his son Mikhail lived, worth around $750,000. He died shortly thereafter. A will contest was initiated based on a number of reasons, including lack of testimony capacity.

The objectors cited several irregularities surrounding the execution of the new will. The will was prepared based by Francesca’s personal attorney who never met or spoke with Ulysses and who lived 350 miles away. The attorney drafted the will and a power of attorney based on the instructions from Francesca that she provided via text messages. Francesca’s neighbor, Karen, and her neighbor’s son, Alexander, were the witnesses.

Published on: February 1, 2021

Father who failed to support child is not an intestate heir of child. Matter of Gonzalez, 196 Misc.2d 984 (N.Y. Surr. Ct. 2003)

by Stephen Bilkis

A last will and testament allows a testator to specific who will receive their property upon death. It is an effective way to ensure you’re your property goes to who you want to receive it. However, many people do not leave wills, dying intestate. As result, New York’s law of intestate succession applies and dictates who gets the property in the decedent’s estate. The surviving spouse and children, if any, would be entitled to inherit. In the absence of either, the decedent’s parents would be next in line to inherit, followed by siblings.

In Gonzalez, the 27-year-old decedent died in the World Trade Center on September 11, 2001. She was survived by her father, sister, and brother. The brother and sister applied for letters of administration. Separately, the father did as well. The brother and sister petitioned the court for summary judgment granting their petition for the issuance of letters of administration. Their request for summary judgment also requested that the court dismissed the decedent’s father’s petition despite the fact that the father was the decedent’s presumptive distributee.

The petitioners argued that the father is disqualified from inheriting because he failed to or refused to provide for her or that he abandoned her. As a result, under EPTL 4-1.1 her estate should be distributed as if the father had predeceased the decedent. That would mean that the petitioners would be her distributees.

Published on: January 18, 2021

Surrogate’s Court considered whether a Military Testamentary Instrument should be admitted to probate. In re Johnson, 69 Misc.3d 357 (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

A military testamentary instrument is sometimes called a “military will.” It is a last will and testament as described by federal statute 10 USCS § 1044d. It can be executed only by or on behalf of a person who is eligible for military legal assistance. Like any other type of will, for a military testamentary instrument to valid, certain formalities must have been present at the time it was executed. It must be executed by the testator in the presence of a military legal assistance counsel acting as presiding attorney and in the presence of two witnesses. Like a will, it takes effect upon the death of the testator. It has the same effect as a will that was prepared and executed according to the laws of the state in which it is presented for probate.

In In re Johnson, the wife of decedent Johnson filed a petition for probate along with a military testamentary instrument purporting to be Johnson’s last will and testament. For an instrument to be admitted to probate, the general rule is that it is up to the proponent to prove that the document complies with the requirements of New York law. Under EPTL § 3-2.1(a), for a will to be valid, the requirements are:

The testator must have signed the instrument at its end