New York Probate and Estate Administration Lawyer Blog

Published on: January 31, 2015

Court Hears Proceeding to Judicially Settle Decdent’s Final Account

by Stephen Bilkis

A Probate Lawyer said that incidental to this proceeding to judicially settle decedent’s final account, covering the period from December 1, 1984 to July 31, 1999, is a plea for construction of paragraphs Fifth and Sixth of his will. National Bank (petitioner), the successor executor and trustee under the will, maintains that construction is necessary before final distribution can be made. Petitioner, the stakeholder of testamentary trusts created under paragraphs Fifth and Sixth, takes no position with respect to the ultimate remaindermen of the trusts.

Mr. FC (hereafter decedent) died testate on January 18, 1944. His last will and testament of February 27, 1942 was admitted to probate by this court on February 10, 1944. Decedent was survived by a daughter, M, and a son, L, his distributees. Decedent’s wife predeceased him in 1942.

After directing the payment of debts and expenses and leaving personal effects, real property and the sum of $1,000 to M, decedent’s will directed that the residue be divided into three equal shares. From these shares, the will established two testamentary trusts: one funded with two thirds of the residuary estate (the article Fifth Trust) and one funded with the remaining one third of the residuary estate (the article Sixth Trust).

Published on: January 30, 2015

Court Decides Settles Plaintiff’s Final Accounting

by Stephen Bilkis

A Probate Lawyer said that incidental to this proceeding to judicially settle decedent’s final account, covering the period from December 1, 1984 to July 31, 1999, is a plea for construction of paragraphs Fifth and Sixth of his will. National Bank (petitioner), the successor executor and trustee under the will, maintains that construction is necessary before final distribution can be made. Petitioner, the stakeholder of testamentary trusts created under paragraphs Fifth and Sixth, takes no position with respect to the ultimate remaindermen of the trusts.

Mr. FC (hereafter decedent) died testate on January 18, 1944. His last will and testament of February 27, 1942 was admitted to probate by this court on February 10, 1944. Decedent was survived by a daughter, M, and a son, L, his distributees. Decedent’s wife predeceased him in 1942.

An Estate Lawyer said after directing the payment of debts and expenses and leaving personal effects, real property and the sum of $1,000 to M, decedent’s will directed that the residue be divided into three equal shares. From these shares, the will established two testamentary trusts: one funded with two thirds of the residuary estate (the article Fifth Trust) and one funded with the remaining one third of the residuary estate (the article Sixth Trust).

Published on: January 28, 2015

Petitioner Seeks to Probate Last Will and Testament

by Stephen Bilkis

A Probate Lawyer said that according to a Kings County Estate Attorney, in a contested proceeding to probate the last will and testament of J, also known as AJ, the objectants appeal, as limited by their brief, from so much of an order of the Surrogate’s Court, Kings Count, dated December 19, 2002, as, upon a decision of the same court, dated October 18, 2002, (a) granted those branches of the proponent’s motion which were for summary judgment dismissing the objections alleging lack of testamentary capacity, undue influence, and fraud, (b), in effect, denied that branch of their cross motion which was to compel disclosure, (c) failed to determine that branch of their cross motion which was to compel production of a handwriting exemplar of the testator, and (d), in effect, directed a separate proceeding to aid in the disposition of that branch of the cross motion of the objectant BJ which was to permit her to exercise her alleged right of election.

A Estate Lawyer said that the portion of the appeal which is from so much of the order as failed to determine that branch of the objectants’ cross motion which was to compel production of a handwriting exemplar of the testator must be dismissed, as it remains pending and undecided.

A Kings County Probate Attorney said, the appeal by the objectant BJ from so much of the order as, in effect, directed a separate proceeding to aid in the disposition of that branch of her cross motion which was to permit her to exercise her alleged right of election (see EPTL 5-1.1-A [c] [4]; SCPA 1421) must be dismissed. That portion of the order is not appealable as of right because it does not decide that branch of the cross motion and does not affect a substantial right (see CPLR 5701 [a] [2] [v]), and leave to appeal has not been granted. Any party aggrieved by a decree entered in the relevant proceeding may take an appeal therefrom.

Published on: January 27, 2015

Court Discusses Credit Shelter Trust

by Stephen Bilkis

A Probate Lawyer before the court is a petition brought by M, the surviving spouse of JM. M is the lifetime beneficiary of a credit shelter trust created under decedent’s last will and testament, and she and the trust share a tenancy in common in the residential real property in which petitioner resides. Petitioner asks that her (M) children, MS and JJ, as co-trustees of the trust, be compelled to distribute funds pursuant to the terms of the trust. Petitioner also asks that the court direct the trustees to pay petitioner’s claims for reimbursement of expenditures which she made in connection with the real property, and the cost of her home health companions.

Petitioner also seeks an order compelling the trustees to enter into a reverse mortgage on the real property. MS, in her capacity as co-trustee, has indicated her willingness to provide the relief requested in the petition, but has been unable to do so without the cooperation of her co-trustee, JJ. Petitioner asks the court to remove JJ as co-trustee if he continues to refuse to provide petitioner with the relief she is seeking, and to charge JJ with costs and legal fees incurred in connection with this proceeding.

An Estate Lawyer said JM died on September 2, 1991, leaving a last will and testament dated April 18, 1991. He was survived by his wife, M, and their five adult children, MS, JJ, MJ, JP and J. The will was admitted to probate and letters were issued to M as executor on November 19, 1991. On May 12, 1992, letters issued to MS and JJ as co-trustees of the credit shelter trust created under Article Second of decedent’s will.

Published on: January 26, 2015

Petitioner Filed Claim to Determine the Validity of a Deed

by Stephen Bilkis

A New York Probate Lawyer said, in a probate proceeding in which the executor petitioned to determine the validity of a deed executed by the decedent LH, the appeal is from an order of the Surrogate’s Court, Kings County, dated May 11, 2007, which granted the petition to the extent of deeming the deed to be valid.

According to a Kings County Probate Attorney, on October 16, 2000 the late Mrs. LH (hereinafter the decedent) executed a will dividing her residuary estate between her son Mr. G, her daughter Ms. RB, and seven of her grandchildren. At the time she executed her will, the decedent was the owner of real property located at XX 56th Street in Brooklyn. Almost one year later, on October 4, 2001, Mr. G executed articles of organization to form ABC Realty Co. LLC (hereinafter the LLC) for the purpose of owning, operating, and managing the real property. On the same day, G and S also signed an operating agreement, which provided that they were to be the sole members of the LLC.

A New York Estate Lawyer said that on November 2, 2001 the decedent executed a deed transferring ownership of the real property to the LLC. However, the LLC’s articles of organization were not filed with the Department of State until November 16, 2001, two weeks after the conveyance. Thus, it is undisputed that the property was purportedly transferred to the LLC before the LLC came into legal existence.

Published on: January 14, 2015

Petitioner Moves to Amend Final Accounting

by Stephen Bilkis

Probate Lawyers said that in this contested accounting proceeding, the petitioner moves for an order permitting him to amend the final accounting to include trustee’s commissions to which he alleges he is entitled. Respondent opposes the motion. For the reasons that follow, the motion is granted

A Kings County Estate lawyer said that the decedent died on May 6, 1979, a resident of Nassau County. His will and a codicil thereto were admitted to probate by decree dated May 25, 1979. The will nominates the decedent’s two daughters and his grandson as co-executors and co-trustees of the trust created under Article FIFTH of the will. Letters testamentary and letters of trusteeship issued to them. The income beneficiaries of the Article FIFTH trust are the decedent’s two daughters and the decedent’s spouse, who died only a few months after the decedent. The remaindermen of the trust are the decedent’s grandchildren. On the other hand, the Oppositor fled objections to the account.

An Estate Lawyer said that according to his attorney, the co-executor is seeking leave to amend the account to include two-thirds trustee’s commissions chargeable to principal due to co-executor for the period of the account as shown on the amended affidavit sworn to on June 17, 2009. The total amount of these commissions is claimed to be $183,602.00.

Published on: January 13, 2015

Court Reviews Previous Account with Regard to Double Commissions

by Stephen Bilkis

A Probate Lawyer said the deceased died May 24, 1905, leaving a last will and testament which was duly admitted to probate in June, 1905. The testator left a widow and one child. The provisions of the will called the attention of the Court by the appellants.

A Kings County Probate lawyer said that in 1906 the executors of the will filed in the Surrogate’s Court an account of their proceedings to November 30, 1906. On the latter date a decree was entered in effect that the executors had accounted for all the money and property of the estate which had come to their hands as executors and judicially settling and allowing the account as filed. The decree further provided that the balance of cash and personal property in the possession of the executors was the sum of $11,392,724.22; that out of the balance in the hands of the executors they retain and pay over to each executor his or her statutory commission on the said property and estate for receiving, administering, and paying over the same, the sum of $149,494.39 to each, and one-half thereon to each for receiving the same as trustees; that the executors should pay over to and transfer to themselves as trustees the balance of cash and personal property then remaining in their hands to be held and administered by them under the trusts created by the will; that they should thereafter continue to perform their duties and exercise their powers as executors under the said will in all matters of administration, sale of real property, or anything else remaining to be done, and that said executors be and they hereby are discharged and released from all liability in respect of all matters and on account of all other acts and doing embraced in the said accounting and this order and decree.

Nassau County Probate Lawyers said from year to year thereafter down to and including the year 1911 separate accounts were filed by the parties, covering their proceedings as executors and also as trustees. As executors they accounted for the proceeds of the sale of real estate and for the rents and income of the property of the estate, both real and personal. Decrees were duly made by the Surrogate’s Court settling such separate accounts, and, although they do not appear in the record, the briefs contain a statement that in each instance the decrees directed them as executors to turn over to themselves as trustees the proceeds of the sales of the real estate made by them as executors in each year, and they were therein allowed one-half the statutory commission for receiving the proceeds of the sales of real estate, one-half commissions for paying the same out as executors to themselves as trustees, and one-half commissions as trustees for receiving the same.

Published on: January 12, 2015

Court Appoints Temporary Administrator in Probate Proceeding

by Stephen Bilkis

A Probate Lawyer said the plaintiffs motion pursuant to CPLR § 1015 seeking to substitute the law firm of K&K as temporary Administrator for the Estate of Mrs. C is denied. Instead the Public Administrator of Richmond County is hereby appointed as the Temporary Administrator of the Estate of Mrs. C.

On October 7, 2006, defendant Mrs. Z died. Mrs. Z’s attorneys K&K became aware of the passing of their client on or about October 13, 2006 and thereafter notified the court and all parties. K&K contacted Mrs. Z’s surviving family members in an attempt to ascertain the name of the Estate’s Administrator and obtain a certified copy of Mrs. Z’s death certificate. Mrs. Z’s surviving family informed K&K that no administrator would be appointed. Mrs. Z’s family did not cooperate in turning over a certified copy of the death certificate until October 2, 2007. On that same day K&K sent a copy of decedent’s death certificate to plaintiffs’ attorney via overnight mail.

An Estate Lawyer said the plaintiffs now move the court to have K&K appointed Temporary Administrator for the Estate of Mrs. Z for the purpose of defending the personal injury claims brought against Mrs. Z.

Published on: January 11, 2015

Court Looks at Jurisdiction Issue in Probate Case

by Stephen Bilkis

Plaintiffs motion pursuant to CPLR § 1015 seeking to substitute the law firm of K&K as temporary Administrator for the Estate of Mrs. C is denied. A Probate Lawyer said that instead the Public Administrator of Richmond County is hereby appointed as the Temporary Administrator of the Estate of Mrs. C.

On October 7, 2006, defendant Mrs. Z died. Mrs. Z’s attorneys K&K became aware of the passing of their client on or about October 13, 2006 and thereafter notified the court and all parties. K&K contacted Mrs. Z’s surviving family members in an attempt to ascertain the name of the Estate’s Administrator and obtain a certified copy of Mrs. Z’s death certificate. Mrs. Z’s surviving family informed K&K that no administrator would be appointed. Mrs. Z’s family did not cooperate in turning over a certified copy of the death certificate until October 2, 2007. On that same day K&K sent a copy of decedent’s death certificate to plaintiffs’ attorney via overnight mail.

An Estate Lawyer said the plaintiffs now move the court to have K&K appointed Temporary Administrator for the Estate of Mrs. Z for the purpose of defending the personal injury claims brought against Mrs. Z.

Published on: January 10, 2015

Court Rules on Notice of Pendency

by Stephen Bilkis

A Probate Lawyer said the plaintiffs, TM Inc. and Mr. D commenced this action against the defendants, Mr. and Mr. X alleging that the defendants failed to pay a real estate brokerage commission. The file reveals that after commencing this action, the plaintiffs filed with the Richmond County Clerk a “Notice of Pendency” against the defendants’ real property located at 1XX Winant Avenue, Staten Island, New York in order to secure payment of the real estate broker’s commission claimed due in this matter. The notice of pendency was dated on April 25, 2005 the same date of the summons and complaint. The plaintiffs’ filing of the notice of pendency with the County Clerk on April 26, 2005 necessitated the defendants seeking an order to show cause to cancel the lispendens (Annotation at the back of the title as to the pending issue involving the said property) of record. A hearing on the issue resulted in an order dated May 6, 2005 canceling the notice of pendency.

The court made a finding that plaintiffs’ complaint is for breach of contract and it is not one that seeks a judgment which would “affect the title to, or possession, use or enjoyment of, real property” as required by CPLR 6501 as a basis for filing a notice of pendency.

Defendants have asserted two counterclaims; one alleges that the plaintiffs have violated the Federal Debt Collection Practice Act (FDCPA) and the second alleges that the plaintiffs improperly filed the notice of pendency. Plaintiffs also seek to dismiss two affirmative defenses of the defendants, one alleging a failure of documentary evidence while the second asserts the equitable defense of unclean hands. The defendants have opposed the motion by filing a cross-motion seeking dismissal of the complaint.