New York Probate and Estate Administration Lawyer Blog

Published on: October 17, 2022

Surrogate’s Court dismissed argument that proffered will should be rejected due to execution of later will. Summary judgement. In re the Estate of Wimpfheimer, 8 Misc. 3d 538 (N.Y. Sur. Ct. 2005)

by Stephen Bilkis

Under New York law, there are multiple ways to revoke a will. The testator can execute a document clearly indicating an intention to revoke the will. The testator can intentionally destroy the will by ripping it up, burning it, or another action of destruction. Or, the testator can execute a new will. In the case of In re the Estate of Wimpfheimer, there was an objection to probating a 1992 for a number of reasons, including that the testator executed a new will in 2003.

Background

The decedent, Ruth Wimpfheimer, died on February 12, 2003 leaving a probate estate valued at $6,000,000. The only distributees were her daughter and the objectant. The will also establishes a trust that benefits the proponent as well as the decedent’s seven grandchildren. The residuary estate goes to the proponent. The will explicitly limits the amount that the objectant was entitled to the decedent has provided for the objectant’s children during her lifetime and because the objectant would receive future benefits from practicing law in the firm that the decedent’s husband founded.

Published on: August 1, 2022

In a turnover proceeding, the Appellate Division upheld the determination that the funds were the property of the estate and not gifts. In re Kelligrew, 63 A.D.3d 1064 (N.Y. App. Div. 2009)

by Stephen Bilkis

During estate administration, a major responsibility of a personal representative is to identify, secure, and inventory estate assets. In some instances, a turnover proceeding is required to ensure that all assets that are part of the estate are accounted for. A turnover proceeding is a legal proceeding that occurs during which the representative of an estate requests that property of the estate in the possession of third parties is returned to the estate. SCPA § 2103.

In Kelligrew, the court considered whether nearly $200,000 in funds transferred to via check drawn on the decedent’s account were assets of the decedent’s estate or a gift.

Background

Published on: July 25, 2022

In a turnover proceeding, the court found that the petitioner largely did not meet their burden. Matter of Mahoney, 2021 N.Y. Slip Op. 32702 (N.Y. Sup. Ct. 2021)

by Stephen Bilkis

In the process of estate administration, when there is a disagreement about who has title to property or there has been a theft of assets, the executor of an estate can initiate a turnover proceeding to get more information and to recover property that belongs to the estate. SCPA § 2103

Background

Decedent died on July 13, 2017. She left a will and was survived by six adult children as well as her long-time companion, the petitioner William Koughn. The decedent and Koughn split their time between homes in Florida and in New York. However, in February 2017, the decedent’s children forced her to move from Florida to New York and initiated a guardianship proceeding. Shortly before her death, one of the decedent’s sons, George Mahoney, was appointed as her guardian.

Published on: July 25, 2022

Father was not barred from sharing in intestate estate of his daughter because his negligence caused her death. In re Wigfall, 20 Misc. 3d 648 (N.Y. Misc. 2008)

by Stephen Bilkis

Under New York law, when a child dies, typically their parents are their next of kin and are entitled to share in their intestate estate. However, a parent can be disqualified from inheriting from the child’s estate under two conditions: if the parent abandoned the child before their 21^st birthday or if the parent failed to provide financially for the child before their 21^st birthday. EPTL § 4-1.4. In addition, there is a long-standing rule in New York that a person is not permitted to profit by their own wrongdoing.

Because children generally do not have significant estates. However, if the child’s death is due to an accident, they child may have been awarded a significant settlement from a personal injury claim for their conscious pain and suffering. In addition, the child’s next of kin may be entitled to share in a settlement for wrongful death.

Background

Published on: July 18, 2022

Court determined that father’s estate was disqualified from sharing in deceased child estate due to abandonment. In Matter of the Estate of Chatham, 2010 N.Y. Slip Op. 51303 (N.Y. Surr. Ct. 2010)

by Stephen Bilkis

Under New York law, when a child dies, a parent can be disqualified from inheriting from the child’s estate under two conditions. First, the parent can be disqualified if the parent did not provide support to the child as when the child was under the age of 21. Second, the parent can be disqualified if the parent abandoned the child. EPTL § 4-1.4.

In Matter of the Estate of Chatham, the administrator of the minor child’s estate was the child’s mother. She petitioned the court requesting that the child’s post-deceased father be disqualified based on abandonment and failure to support. The widow of the child’s father objected to the child’s mother’s petition to disqualify the child’s father.

Background

Published on: July 11, 2022

Father had not abandoned child and was entitled to share in child’s intestate estate, In the Matter of Estate of Ball, 24 A.D.3d 1062, (N.Y. App. Div. 2005)

by Stephen Bilkis

New York law provides that a parent would not be entitled to share in the intestate estate of their minor child if the parent did not support the child during their life or if the parent abandoned the child. EPTL §4-1.4(a). In In the Matter of Estate of Ball, the father of the deceased child argued that he should not have been disqualified based on failure to pay child support.

Background

In February 2003, the child died while in daycare. He was 20 months old at the time. The mother sought to prevent the child’s father from sharing in the child intestate estate. The mother and father of the child were not married. The child was conceived from a casual relationship. The father initially doubted paternity and the mother did not put the father’s name on the child’s birth certificate.

Published on: July 1, 2022

the Court Was Asked to Make A Judicial Construction and to Enforce a No Contest Clause, 2017 NY Slip Op. 31132

by Stephen Bilkis

In New York a construction proceeding involves a petitioner asking the Surrogate’s Court to interpret language in a will or trust that is unclear. The language may be open to conflicting interpretations, the language may be inconsistent with other terms of the will, or the language simply might not make sense.

In In re Petition of Nadler, the decedent was survived by three adult children. Four years prior to her death, the decedent created trust that was funded by shares of a realty company. One of the decedent’s children is a trustee. Under the terms of the trust, the children as beneficiaries were entitled to the income from the trust. Five years after the decedent’s death, the primary asset of the realty company was sold for over $8 million, and a year later the realty company was dissolved.

The petitioners, the beneficiaries of the trust, petitioned the Nassau County Surrogate’s Court for a judicial construction to provide that because of the sale of the assets the realty company and its dissolution, there is no longer a need for the trust. As a result, the trust should end and its assets distributed to the beneficiaries of the trust. The petitioners argue that because the trust does not contain directions related to what should happen in the event of the dissolution of the realty company, there is an ambiguity that requires to court to make a judicial construction. The petitioners point to language in a related trust that allows for the court to step in to resolve any ambiguity related to the trust termination date. The petitioners also rely on the law which states that a trust can be terminated when its purpose ends.

Published on: June 27, 2022

Misconduct must be shown to remove an estate administrator. In re Matter of Estate of Corey, 65 Misc.3d 524 (N.Y. Surr. Ct. 2019)

by Stephen Bilkis

Once an administrator has been appointed, SCPA § 711 provides that they can be removed or suspend under specific circumstances. In In re Matter of Estate of Corey, the Surrogate’s Court was to remove an administrator because he allegedly exceeded the scope of his fiduciary duties and responsibilities.

Background

The decedent died on July 8, 2018 at the age of 92. She was survived by three children and two grandchildren. She was intestate and left an estate valued at about $30,000,000. All of the beneficiaries were eligible to serve as administrator. However, they all agreed that attorney Markello should be appointed administrator. Because Markello was not a beneficiary of the decedent’s estate, all of the beneficiaries had to approve his appointment. Letters of administration were issued to Markello on August 8, 2018.

Published on: June 20, 2022

Father disqualified as a distributee for failure to support decedent. In re Lee, 2021 NY Slip Op 30984(U) (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

New York law provides that a parent can be disqualified for receiving death benefits of their minor child for two reasons: for failing to support the child, or for abandoning the child. EPTL §4-1.4. In In re Lee, probate litigation was initiated requiring the Surrogate’s Court of New York County to determine whether the father of a deceased child should be disqualified based on failure to pay child support.

Background

In March 2016, the child died at age 14 while at boarding school. At the time her parents were divorced. The mother was the custodial parent. The father was ordered to pay child support. The mother petitioned for and was awarded letters of administration for her daughter’s estate. The father did not appear at the hearing and did not oppose the mother being appointed administrator.

Published on: June 13, 2022

Court upheld dismissal of unfounded allegations of undue influence. Capone v. Schmidt (In re Schmidt), 194 A.D.3d 723 (N.Y. App. Div. 2021)

by Stephen Bilkis

In this case, the Appellate Division, Second Department, considered whether the Surrogate’s Court of Kings County erred in granting summary judgment dismissing the objectant’s objections and admitting the decedent’s will to probate.

Background

The decedent died on May 20, 2014 leaving a will dated March 28, 2014. The petitioner filed a petition for probate on July 22, 2014. Several people filed objectants claiming lack of due execution, lack of testamentary capacity, undue influence, and fraud. The Surrogate’s Court dismissed the objections and admitted the will to probate. An objectant appealed.