New York Probate and Estate Administration Lawyer Blog

Published on: February 11, 2015

Court Hears Motion to Substitute Executor for Will

by Stephen Bilkis

A Probate Lawyer said this is a motion to substitute the executor of the Last Will and Testament of the deceased as plaintiff herein and to permit the said Executrix upon substitution to serve an amended complaint to include therein an action for wrongful death; and to serve an amended bill of particulars.

A Kings County Estate lawyer said that the action was commenced on July 31, 1957 to recover damages for personal injuries allegedly sustained in an accident on December 14, 1956. Issue was joined on August 20, 1957 and on February 12, 1958 a bill of particulars, verified was served on defendants. In February, 1958, a note of issue was served for the March 1958 Trial Term of this Court. The deceased died on February 16, 1958. His Last Will and Testament was admitted to probate and the plaintiff was appointed Executrix on December 14, 1958. The sole excuse offered for the failure to have moved previously for the relief sought herein is that it appeared to plaintiff that defendants would possibly settle the action for personal injuries.

The branch of the motion to substitute the executrix as plaintiff in this action is granted.

Published on: February 10, 2015

Plaintiff Brings Motion to Substitute Executor

by Stephen Bilkis

Probate Lawyers this is a motion to substitute the executor of the Last Will and Testament of the deceased as plaintiff herein and to permit the said Executrix upon substitution to serve an amended complaint to include therein an action for wrongful death; and to serve an amended bill of particulars.

A Kings County Estate lawyer said that the action was commenced on July 31, 1957 to recover damages for personal injuries allegedly sustained in an accident on December 14, 1956. Issue was joined on August 20, 1957 and on February 12, 1958 a bill of particulars, verified was served on defendants. In February, 1958, a note of issue was served for the March 1958 Trial Term of this Court. The deceased died on February 16, 1958. His Last Will and Testament was admitted to probate and the plaintiff was appointed Executrix on December 14, 1958. The sole excuse offered for the failure to have moved previously for the relief sought herein is that it appeared to plaintiff that defendants would possibly settle the action for personal injuries.

The branch of the motion to substitute the executrix as plaintiff in this action is granted.

Published on: February 9, 2015

Plaintiff Brings Declaratory Judgment

by Stephen Bilkis

A Probate Lawyer said in this action for a declaratory judgment in which the defendants have counterclaimed for judgment declaring the rights of the parties as they claim them to be, the latter have moved for summary judgment as prayed for in their counterclaim. The plaintiffs, in accord with the movants’ contention that no triable issues of fact are presented, oppose the motion solely in so far as the declaration of rights sought by the defendants is concerned and seek summary judgment as prayed for in their complaint.

A Kings County Probate lawyer said that the plaintiffs’ testatrix died a resident of this County on August 5, 1959. Her Last Will and Testament dated April 23, 1959, was duly admitted to probate in the Surrogate’s Court, Queens County, on October 13, 1959, and letters testamentary were on that day duly issued to the plaintiffs, who have qualified and are acting as such at this time.

During the lifetime of the testatrix and on the date of her death, she was the owner of 600 shares of the capital stock of the defendant store corporation and 51 shares of the capital stock of the defendant and realty corporation. By paragraph Fourteenth of her will, the plaintiffs’ testatrix bequeathed 350 shares of her store corporation stock to the defendant and 250 shares thereof to the defendant, to be theirs absolutely and forever.

Published on: February 8, 2015

Court Deals with Conflicting Interpretation of a Will

by Stephen Bilkis

Probate Lawyers said before the Court is the petition of Mr. Dm for the construction of Clause Second of the Last Will and Testament of his mother, Mrs. M. The decedent died June 14, 1984 survived by her son, Dm, the petitioner herein, as her sole distributee. Mrs. M’ Will was admitted to probate by this Court on July 12, 1984.

The entire Will is only five paragraphs long and the dispositive provisions are contained within Clause Second in the form of a Residuary Testamentary Trust given to the Trustee:

“To hold, administer, invest and reinvest for the benefit of my son, DM and to collect the income thereof and pay any lawful expenses incidental to the execution of the trust and to pay out to my son the sum of $500.00 each month until such time when the trust fund is depleted of all its assets. However, in the event that said assets reach a minimum of $2,500.00, the Trustee may in his discretion terminate said trust and after payment of any remaining expenses, disburse remaining moneys to my son above mentioned.”

Published on: February 7, 2015

A Determination is Sought as to the Validity of a Devise of Real Property

by Stephen Bilkis

In this construction proceeding a determination is sought as to the validity and effect of a devise of real property contained in testatrix’ will.

A Probate Lawyer said the testatrix died on May 13, 1932 survived by five daughters, and children of a predeceased daughter. Testatrix’ will dated February 4, 1923 was admitted to probate on July 8, 1932, and under it the daughter was appointed executrix. At present the only unadministered asset of the estate is a specific parcel of real property. By article fourth of the will this realty is devised to testatrix’ five daughters ‘share and share alike, for the term of their natural lives, and upon the deceased of each or any of them her share to revert to the survivor or survivors of them and to no others, until there is a sole surviving daughter in which event the said sole survivor shall take the property in fee simple absolute.’ Article fifth of the will contains a prohibition against sale of the realty unless such sale be made ‘with the unanimous express consent of all’ the living sisters. By article seventh testatrix directs that if any proceeding is commenced by any of the daughters ‘to set aside this Will or to seek any interpretation contrary to my intentions expressed herein, then and in that event, the said daughter shall immediately forfeit all her right, title or interest in any of my property’

A New York Estate Lawyer said that petitioner herein, is the only living daughter, the other devisees of the realty having died in different instances. She now seeks to sell the real property, and in this proceeding requests a determination as to the person or persons entitled to the ownership thereof, and of the effect of article seventh upon the interested parties. Request is also made that letters of administration c.t.a. be issued to petitioner, and that she be granted specific authority by the court to sell the said realty.

Published on: February 6, 2015

Court Hears Claim Brought by State Department of Mental Hygiene

by Stephen Bilkis

Probate Lawyers said that this issue is a frequently recurring problem in the Surrogate’s Courts, that of claims against estates or beneficiaries of estates by the State Department of Mental Hygiene.

Testator M died August 9, 1975 leaving his widow S as his sole distributee. His will executed in 1968 and admitted to probate provided a trust of one-half his net estate for S, remainder to two named cousins. (The cousins were also residuary legatees) As nominated executors, they have been issued letters. The gross estate is approximately $75,000.

A New York Estate Lawyer said that in 1968, shortly after the execution of the will, S was institutionalized and except for brief periods has continued as a patient in one of the institutions in the Department of Mental Hygiene (Department). A Committee has been appointed for her. The Committee is holding assets (apart from any beneficial interest in her husband’s estate) of over $100,000.

Published on: February 5, 2015

Court Decides if Widow Entitled to Maximum Exemption Regarding Estate Tax

by Stephen Bilkis

Probate Laywers said that sources revealed that the decedent died leaving a joint will entered into with his wife. Under the provisions of that will all property of the person first dying is bequeathed to the survivor; upon the death of the survivor ‘all of the property of which he or she shall be possessed, including such property as he or she shall have acquired under the terms of this Last Will and Testament, shall go’ to a daughter with a gift over if said daughter predeceases the survivor. The Tax Commission urges that the widow is not entitled to the maximum exemption because the taxable estate transferred to her is not ‘indefeasibly vested’ within the meaning of section 958(b)(1) of the Tax Law. It argues that the joint will is a contract binding upon the survivor, and that the widow, at most, has the equivalent of a life estate, the remainder of which passes to the daughter upon her death.

Although both parties base their contentions upon the provisions of the joint will, that instrument has not been offered for probate. Ordinarily a will is not presumed valid until probated, as before such approval there is nothing to be construed. However, SCPA 2002 provides that the surrogate’s court of every county having jurisdiction of the estate of a decedent under the provisions of the tax law relating to transfer or estate taxes shall have jurisdiction to hear and determine all questions arising thereunder, including specifically, but without limitation, jurisdiction to fully determine the amount of tax to be imposed. Aside from the ordinary jurisdiction of the surrogate, this is a special grant of power in broad and comprehensive language. There can be no good reason for hampering the power conferred by any construction that would take from the court the authority to decide every question that may arise in the tax proceeding which may be necessary in order to fully discharge the duties imposed by the law. As an incident to determining the estate tax, the court, in this instance, must necessarily interpret the terms of the joint will. Under such circumstances a construction of the will is proper despite the fact that the will has not yet been probated.

A New York Estate Lawyer said that furthermore, SCPA 209(4) provides, in part, that the court has power ‘to determine a decedent’s interest in any property claimed to constitute a part of his gross estate subject to estate tax and to determine the rights of any persons claiming an interest therein as between themselves, And to construe any instruments made by him affecting such property.’ One of the issues raised herein is whether the joint will is a contract binding upon the survivor. Though the contract, if one was created, is tantamount to a testamentary disposition, it need not comply with the statutory requirements for the execution of wills. The court is thus interpreting the validity of the document not as a will but as a contract, which is an instrument within the meaning of SCPA 209(4).

Published on: February 4, 2015

Court Determines the Validity of a Notice of Election

by Stephen Bilkis

Probate Lawyers show that the instant proceeding was commenced by the executors pursuant to section 145-a of the Surrogate’s Court Act to determine the validity and effect of the widow’s notice of election served and filed pursuant to section 18 of the Decedent Estate Law. However, after commencement of the proceeding, the widow withdrew said issue, and instead submitted for the Court’s determination on a basis of conceded facts the issue raised in her counterclaim for $10,000 with interest from date of decedent’s death. Widow, in her counterclaim alleges that she and decedent entered into a written agreement wherein inter alia decedent agreed to leave her a legacy of $10,000; that he failed to provide for her in his will which was admitted to probate; that the estate is sufficient for all purposes; that she duly performed all the terms, conditions and covenants on her part to be performed; that payment of said amount has been refused although duly demanded; and the widow therefore prays for an award in said amount. The other parties contend that said agreement between decedent and the said widow is unenforceable.

Under the agreement, the widow, under her maiden name renounced any and all right, title, interest in any property that decedent was then seized of or might thereafter acquire, as well as to the estate of decedent in the event that he predeceased her. Decedent on his part ‘promises and agrees to make a provision in his Last Will and Testament whereby the first party shall receive a bequest in the sum of $10,000.’ This is followed by the final paragraph stating: ‘The reason, purpose and object of this agreement is that the parties thereto intend to marry and become husband and wife, and each having children by a prior marriage, and each being desirous that their children shall inherit there respective property and estate, have entered into mutual or like agreements for the purpose of assuring each to the other, that they will not claim any interest in the estate of the one dying first, except as aforesaid.’

A New York Estate Lawyer said it would appear that the agreement contemplated a marriage in future which, though prohibited in this State by reason of the fact that decedent was widow’s uncle, could have been entered into validly in some other jurisdiction in which event the marriage would be entitled to recognition as valid in this State. The relationship of decedent and the widow was not meretricious. On March 23, 1945 decedent, a widower 72 years old, and the wife, a widow 57 years old, had obtained a marriage license in Brooklyn and entered into a religious marriage ceremony. They lived together for more than 15 years as husband and wife. Their marriage apparently was entered into in good faith. It was solemnized by a Rabbi who, in a statement, certified that he united the parties in marriage on March 23, 1945, and that the said widow was decedent’s legal wife. The agreement by decedent to provide a legacy for the widow being in writing satisfies the Statute of Frauds strongly relied upon by the other parties is not in point. It deals with an ante-nuptial contract which contemplated a marriage that would be invalid because of a living spouse, whereas in the instant case there was no impediment to the marriage in a jurisdiction where they could legally marry.

Published on: February 3, 2015

A Convicted Felon Files for Guardianship

by Stephen Bilkis

Probate Lawyers said that according to sources, a convicted felon who is unrelated to two subject children has filed for guardianship of these children who presently reside with him and his wife. The maternal uncle and adopted brother of the children has cross-petitioned for guardianship of the two subject children and opposed the petition of the said felon.

The court ruled that in a guardianship/custody dispute between two parents, the court is bound to make its determination based solely upon what is in the best interests of the children. The Court of Appeals firmly established a “totality of the circumstances” approach to all custody determinations, indicating that no one factor should be determinative in deciding what is in the best interests of the child. Even though this case does not involve two parents, the totality of the circumstances analysis is appropriate herein.

A New York Estate Lawyer said that under the totality of the circumstances rule no one factor is determinative in making an award of custody. Determining what is in the child’s best interest requires that consideration be given to many factors such as: the relative stability of respective parents, the wishes of a child, the effect of separation of siblings, the length of time the present custody arrangement has continued, the care and affection shown to the child by the parents, the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s emotional and intellectual development, the atmosphere in the homes, the morality of the parents, the financial standing of the parents, the refusal of a parent to permit visitation and or the willingness of a parent to encourage visitation and the overall relative fitness of the parties. The existence or absence of any one factor cannot be determinative since the court must consider the totality of the circumstances. In the end, any determination of child custody must be based upon what is for the best interest of the child and what will best promote its welfare and happiness. Even in a guardianship proceeding, the same best interest test must apply for the benefit and welfare of these children. Neither party is a parent. Although the respondent is a blood relative, there is no prima facie preference for a blood relative over a person who is not related to the child.

Published on: February 2, 2015

Court Determines What Constitutes Reasonable Legal Compensation

by Stephen Bilkis

Probate Lawyers said in this probate proceeding in which the successor trustees of a living trust petitioned for the judicial settlement of their account. A Petition was filed by the attorney for the successor trustees, filed an Appeal, as limited by his brief, from so much of a decree of the Surrogate’s Court, Kings County, dated May 1, 2009, as, upon a decision of the same court dated November 7, 2008, fixing his attorney’s fee in the principal sum of only $28,698, directed him to refund the sum of $25,437 to the trust.

A Kings County Probate lawyer said that the Court made a ruling stating that the Surrogate “bears the ultimate responsibility to decide what constitutes reasonable legal compensation” in estate matters regardless of whether the parties agreed to the amount of legal fees. This was based on the leading case of Matter of Verplanck, 151 A.D.2d 767, 767, 543 N.Y.S.2d 138; and the case of Matter of Phelan, 173 A.D.2d 621, 570 N.Y.S.2d 202).

An Estate Lawyer said that here, the Surrogate’s Court providently exercised its discretion in fixing the appellant’s attorney’s fee in the principal sum of only $28,698, and directing him to return to the trust the sum of $25,437, representing an overpayment. The Surrogate properly considered the relevant factors, and its emphasis on the size of the trust estate was warranted under the circumstances