New York Probate and Estate Administration Lawyer Blog

Published on: March 18, 2015

Court Decides Testator’s Widow has Right to Take Interstate Share

by Stephen Bilkis

Probate Lawyers said this is an incident to the judicial settlement of their account the executors seek a determination with respect to the validity of the trust created by testator under paragraph ‘Second’ of the will and the effect of the widow’s notice of election thereon. Said paragraph is the residuary clause and the only dispository provision of the will.

The testator made and executed his will in the state of New York where he was domiciled in 1947. He died in 1954 in the state of Virginia, where he then resided with his wife and five children. At the time of his death testator was possessed of real and personal property situated in both states. Testator’s will was probated in this Court on July 28, 1954. Thereafter, the original will was transmitted to Virginia and also probated in that state on or about October 9, 1954.

A New York Estate Lawyer said in the probate proceedings had in Virginia, testator’s widow renounced the provisions made for her under the will and elected to take her intestate share. Under the laws of Virginia surviving spouse may elect to take against a will if it provides less than the intestate share of one-third unless such right to elect has been lawfully barred or relinquished (Code of Virginia, §§ 64-20, 64-27, 64-32).

Published on: March 17, 2015

Court Judicially Settles Final Accounts of an Estate

by Stephen Bilkis

The two cases below are about probate proceedings.

Probate Lawyers said in a probate proceeding to judicially settle the final accounts of an estate, the successor administrator, KG, appeals, as limited by his brief, from so much of a decree of the Surrogate’s Court, Kings County (Lopez Torres, S.), dated December 3, 2009, as, after a nonjury trial, denied his objections to and judicially settled the final account of KTLG, the original administrator of the estate, and granted the objections of Wendy Walton to his amended final account.

In an accounting proceeding, the party submitting an account has the ultimate burden of demonstrating that he or she has fully accounted for all of the assets of the estate (see Matter of Tract,284 AD2d 543; Matter of Schnare,191 AD2d 859, 860). While the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete, upon satisfaction of that showing the accounting party must prove, by a fair preponderance of the evidence, that his or her account is accurate and complete (Matter of Tract, 284 Ad2d at 543; see Matter of Campione,58 AD3d 1032, 1034; Matter of Schnare, at 860).

Published on: March 16, 2015

Court Discusses Validity of Bequest to Charity

by Stephen Bilkis

The committee of an incompetent moves for permission to file objections to the account of the Executor of the Last Will and Testament of the incompetent’s mother and for leave to obtain a construction of her will in respect to the validity of certain provisions for charitable bequests which, in his opinion, contravene the provisions of section 17 of the Decedent Estate Law. Said section provides that not more than half of an estate may be bequeathed to charity where the decedent is survived by a child or certain other close relatives.

Probate Lawyers said the incompetent’s mother died on July 11, 1956, leaving a Last Will and Testament which was duly admitted to probate by the Surrogate’s Court of Kings County on December 21, 1956.

By the terms of her will the decedent bequeathed one half of her residuary estate to eight charitable organizations in equal shares. The other half of her estate she bequeathed to a trustee in trust for the incompetent herein with directions to the trustee to pay the income to the Central Islip State Hospital for his care and maintenance and, in its discretion, to invade the principal to the extent of $150 per year. Upon the death of her son the trust was to terminate and the corpus thereof was to be paid to the State of New York in payment of past care and attention.

Published on: March 15, 2015

Court Determines Validity of Notice of Election

by Stephen Bilkis

A Probate Lawyers said that, the executors seek a determination as to the validity and effect of the notice of election served and filed by the surviving spouse to take against testator’s will. The will, dated August 1, 1960, was admitted to probate on January 24, 1961. By paragraph ‘THIRD’, testator bequeathed 35% of his estate to his wife with the direction that she ‘devote and contribute one-third’ thereof to certain charities. The will contains no other provision for testator’s wife. The remainder of the estate is to be divided among named legatees in specified percentages.

There were no children born of testator’s marriage, thus the intestate share of the surviving spouse is 50% of the net estate. The bequest provided for the surviving spouse under testator’s will does not meet the minimum requirements of the statutes (Decedent Estate Law, §§ 83, 18). The statutory provisions in favor of a surviving spouse are remedial and are to be liberally construed.

A New York Estate Lawyer said that, in another probate proceeding, co-executor and legatee under the will of the decedent, appeals from so much of an order of the Surrogate’s Court, Kings County, entered January 24, 1964, as granted $1,012.50 to lawyer for counsel fees, said amount to be a lien upon appellant’s share of the decedent’s estate.

Published on: March 14, 2015

Widow Makes Motion to Disqualify Attorneys

by Stephen Bilkis

The widow of the testator has made this motion to disqualify the attorneys for the executors and their counsel, to restrain them from participating in the affairs of the estate and from continuing to appear for the executors in matters affecting the estate, and to require said attorneys and their counsel to restore to the estate all sums of money they have received for legal services or otherwise.

New York Probate Lawyers said that testator’s will was duly admitted to probate and letters testamentary issued to his three children as the nominated executors therein. By the provisions of his will testator bequeathed $5,000 to his widow and provided other benefits for her, not necessary of enumeration, and bequeathed and devised the residue of his estate, in equal shares to his three children whom he named as executors. The widow filed a notice of election to take her intestate share in the estate as provided by Section 18 Decedent Estate Law, and instituted a proceeding to determine the validity of such election. The matter was settled by agreement wherein the widow was to receive 28 1/2% of the net estate with the balance being distributable to testator’s children in equal shares.

Thereafter the widow instituted a proceeding to compel the executors to account and on their failure to file the account as directed made a motion to punish from for contempt. The account was filed and objections thereto were filed by the widow and examinations of the executors were allowed with reference to such account. In addition the widow sought to compel the executors to account in the estate of testator’s first wife under the terms of whose will testator was the income beneficiary of a trust of the residuary estate with the remainder of such trust bequeathed and devised to testator’s and his first wife’s three children, the executors of testator’s estate.

Published on: March 13, 2015

Accounting Fidicuciary Seeks to Charge Remainder Interest

by Stephen Bilkis

A New York Probate Laywer decedent Mrs. AH died in 1940. Her will admitted to probate, after minor pre-residuary dispositions, created a trust for the income benefit of her daughter M with remainder to M’s children. The trust was funded in 1946 and administered by co-trustees M, the income beneficiary and Mr. R. Mr. R died in 1959. From 1959 to June 1, 1977, the date of her death, the trust was administered by M, the income beneficiary, as sole trustee.

At her death in 1977, the remaindermen of the trust were M’s seven children, one of whom was P. M’s executor has now accounted as a fiduciary of the deceased trustee.

The account reveals that on October 9, 1963, M, as sole trustee, made a loan from the trust to P in the sum of $64,000. P executed a demand promissory note to the trust. As security, P executed an assignment of all his right, title and interest in his remainder interest, then (as now) a one-seventh share of the principal. P made interest payments on the loan from 1963 to 1968. No part of the principal of the loan has been repaid.

Published on: March 12, 2015

Appellant Files Motion to Compel Petition for Respondent to Account

by Stephen Bilkis

New York Probate Lawyers said an RF died intestate in December, 1947 and letters of administration were issued to his widow, the respondent, in the same month. In September, 1948 respondent filed an income tax return for 1947 on behalf of the decedent. During the return’s audit, respondent executed three assessment waivers, the last of which extended to June, 1954 the time of the appellant, United States of America, for the making of an assessment. In May, 1954 a deficiency assessment for income taxes was made by appellant in the sum of $32,440.09 and, in August, 1954 the District Director of Internal Revenue filed with the respondent a notice of claim for payment of that sum. The respondent neither paid nor rejected appellant’s claim.

In 1962 appellant filed a petition to compel respondent to account. In defense, respondent alleged the six-year limitation period provided in the 1939 Internal Revenue Code. Surrogate Moss, as a matter of law and in the exercise of discretion, denied appellant’s petition.

The Surrogate conceded that, under former section 211 of the Surrogate’s Court Act, the filing of a notice of claim and its rejection were deemed the commencement of a special proceeding, effectively tolling State statutes of limitation.

Published on: March 10, 2015

Parties Seek Leave to File Amended Objections in Probate Case

by Stephen Bilkis

In this contested accounting proceeding several applications seeking pre-trial relief have been submitted. Specifically said applications are as follows:

A. Application by objectants, by orders to show cause, inter alia, to amend objections and to join additional parties; and B. Application to cancel notices of pendency pursuant to Article 65 of the CPLR.

A New York Probate Lawyer said the decedent died on January 30, 1956. His will was duly admitted to probate by decree of this court entered on March 5, 1956. Letters testamentary issued thereunder to decedent’s spouse, the nominated executrix. Decedent’s will bequeathed one-third of the residuary estate to his spouse and the remaining two-thirds, in equal shares, to his three children with the further direction that the share of his two daughters be held in a “trust fund” until they each attained the age of 23 years. Decedent’s daughters attained the age of 23 years in 1959 and 1961, respectively.

Published on: March 8, 2015

Petitioner Seeks Repayment of Trust Principal

by Stephen Bilkis

A Probate Lawyer said the decedent Mrs. AH died in 1940. Her will admitted to probate, after minor pre-residuary dispositions, created a trust for the income benefit of her daughter M with remainder to M’s children. The trust was funded in 1946 and administered by co-trustees M, the income beneficiary and Mr. R. Mr. R died in 1959. From 1959 to June 1, 1977, the date of her death, the trust was administered by M, the income beneficiary, as sole trustee.

At her death in 1977, the remaindermen of the trust were M’s seven children, one of whom was P. M’s executor has now accounted as a fiduciary of the deceased trustee.

The account reveals that on October 9, 1963, M, as sole trustee, made a loan from the trust to P in the sum of $64,000. P executed a demand promissory note to the trust. As security, P executed an assignment of all his right, title and interest in his remainder interest, then (as now) a one-seventh share of the principal. P made interest payments on the loan from 1963 to 1968. No part of the principal of the loan has been repaid.

Published on: March 7, 2015

Petitioner Brings Action for Settlement of Trustee’s Account

by Stephen Bilkis

In this action for a judicial settlement of a trustee’s account and for a construction of the will and codicils of the testator, the trustee moves for summary judgment.

Probate Lawyers said the testator died in September 1918, leaving a will and five codicils which were admitted to probate in January 1919. By his will and codicils, the testator gave his nephew, C, an outright legacy of $500,000 and created fifteen trusts. Eight of the trusts provided that upon the death of the life tenant the corpus of each trust was to be disposed of as part of the residuary estate which was left entirely to charities (hereafter charitable trusts). The remaining seven trusts provided in each instance on the death of the life tenant for the delivery of the remainder of such trust to non-charitable beneficiaries (hereafter non-charitable trusts).

By Article Twenty-Second of his first codicil, the testator provided that the charities to which the residue was lift should not receive any benefit from the estate until all other trusts and legacies were fully paid. The testator’s foresight in making this provision is demonstrated when it was determined shortly after his death that the estate could fulfill the legacies and trusts only to approximately ninety per cent thereof. By a judicial construction of this provision it was determined that as each charitable residuary trust terminated, no payment would be made to the charitable residuary legatees until the then continuing trusts and all previously terminated non-charitable trusts had been funded in full and the legacy to the testator’s nephew had been paid in full.