New York Probate and Estate Administration Lawyer Blog

Published on: March 21, 2022

Court denies petition for summary judgement approving compromise petition allocating the entire settlement to wrongful death where there was evidence of conscious pain and suffering. Matter of Qyra 2014 NY Slip Op 24187

by Stephen Bilkis

In the Matter of Qyra, the Surrogate’s Court considered an issue related to the allocation of the money award in a wrongful death lawsuit. On February 25, 2010, while walking in Central Park, Elmaz Qyra was struck by a tree branch and died. The administrator (personal representative) of his estate filed a lawsuit to recover damages and was awarded a $3,000,000 settlement. The administrator petitioned the Surrogate’s Court to issue a decree allocating the entire settlement to wrongful death. The objectant argued that a portion should be allocated to personal injury.

When someone dies as a result of negligence, the personal representative of the decedent’s estate can bring a lawsuit to recover losses suffered by the decedent as well as losses suffered by the decedent’s family. If the lawsuit is successful and money is awarded, the Surrogate’s Court must determine how to allocate the money- to personal injury, to wrongful death, or a combination of both. The manner of allocation determines to whom the money is distributed.

Sums that are allocated to personal injury compensate the injured party—the decedent—for the conscious pain and suffering they suffered because of the negligence. Since the money awarded for personal injury belongs to the decedent, it is considered probate property and is added to their probate estate. Sums that are allocated to wrongful death compensate the decedent’s next of kin for the losses they suffered because of the negligence. That money is distributed directly to the next of kin. It is never a part of the decedent’s estate.

Published on: March 14, 2022

Surrogate’s Court considered whether a will was properly executed where the witnesses were not in the presence of the testator when they executed the attestation clauses and the witness affidavits. Matter of William Ryan, 2021 NY Slip Op 21010

by Stephen Bilkis

In this case, during a 1404 examination of the two execution witnesses, Surrogate’s Court had to determine if the decedent’s will had been properly witnessed given the unusual execution ceremony. For a will to be valid in New York, it must be properly executed. This means that the will must be signed at the end by the testator or at the direction of the testator in their presence. It must also be signed by at least two witnesses in the presence of the testator. Under SCPA § 1404, before a will can be admitted to probate, at least two of the attesting witnesses must appear in court and be questioned by the court.

In Matter of William Ryan the testator was in poor health at the time his will was drafted. In addition, because of COVID, there were restrictions on gatherings. As a result, attorneys found themselves conducting business differently in they would under pre-pandemic conditions. The original plan was for the will to be executed in the parking lot of the office of the attorney who drafted the will. However, Ryan’s conditioned worsened before that happened, and he was hospitalized. The hospital had implemented strict rules to minimize the spread of COVID. As a result, guests were not allowed to visit patients. In order to execute the will, a hospital social worker had to assist.

The social worker delivered the will to Ryan and was present when he signed it. The video feature of a cell phone was used along with a computer at the attorney’s office so that the attorney and the witnesses could be “present” when Ryan signed the will. Immediately after Ryan signed the will, the original was driven back to the attorney’s office where the two witnesses executed the attestation clause and the witness affidavit. The attestation clause and affidavit had been stapled to the original will in a will.

Published on: March 7, 2022

Written agreement between spouses was enforceable and did not abate upon death, even though divorce was not finalized. Will of Dindiyal, 2009 NY Slip Op 32215 (N.Y. Surr. Ct. 2009)

by Stephen Bilkis

In a case where there is an objection to the issuance of letters, the court considered whether an agreement between two spouses who were in the middle of a divorce abated upon the death of one of the spouses.

Background

The decedent and Asha were married. However, at the time of the decedent’s death, he and Asha were in the middle of a divorce. The divorce was never finalized. As part of the divorce process, the couple entered into a written agreement. The terms of the agreement included that

Published on: February 28, 2022

Court refused to hold evidentiary hearing on fitness of administrator. Abram v. Abram, 2020 NY Slip Op 3195 (N.Y. App. Div. 2020)

by Stephen Bilkis

In Abram v. Abram the court was asked to consider whether the Surrogate’s Court of New York County erred in denying an evidentiary hearing on the fitness of an administrator of a decedent’s estate.

Judges have broad discretion in determined whether an administrator or executor is qualified. Typically courts will not disqualify someone unless there is a significant reason to believe that the estate is at risk.

It is not unusual for those who challenge the fitness of an administrator to do so simply because they want to serve as administrator or because they do not like the administrator for personal reasons that have nothing to do with their fitness to serve as administrator.

Published on: January 3, 2022

Inquest judge denies claim filed against a decedent’s spouse where there was no evidence that she had been appointed personal representative. Rotwein v. Murray, 950 N.Y.S.2d 610 (N.Y. Dist. Ct. 2012)

by Stephen Bilkis

In Rotwein v. Murray, the District Court reviewed a case related to claim filed against an estate of a decedent for the payment of medical bills. Under EPTL, creditors have the right to file claims against the personal representative of an estate to seek payment of debt. EPTL § 11–3.1

Background

The decedent was a patient of the plaintiff who was a podiatrist. The decedent left an outstanding debt to the plaintiff of $12, 470.45. The plaintiff unsuccessfully demanded payment form the decedent’s widow. He then filed a claim against the decedent’s widow in her capacity as executor of the decedent’s estate. In the that lawsuit, the claim was for a lesser amount- $5,000. Although the defendant did not respond to the plaintiff’s attempt at service, the court determined that she had sufficient notice of the proceeding. However, because the defendant failed to appear, the court determined that an inquest was the appropriate way to proceed. An inquest is a hearing for the purpose of determining the amount of damages due on a claim.

Published on: November 15, 2021

Creditor objected to allocation of wrongful death award. In re Estate of Domingo Torres, Sr. (2002)

by Stephen Bilkis

While the case of In re Estate of Domingo Torres, Sr. turns on the narrow issue of whether to grant the New York City Department of Social Services (DSS) more time to file objections to the account filed by the personal representative, here we will look at why the DSS wants the Surrogate’s Court to hear its objections.

At the time that Torres passed away, he owed the DSS $87.903.76. As part of the estate administration process, New York law requires that the personal representative pay debts owed by the decedent out of estate assets before assets are distributed to the decedent’s beneficiaries or heirs. However, debts can only be paid to the extent there are funds in the estate to do.

As required, the DSS filed a claim against the decedent’s estate for $87.903.76. Even though it appeared as if the claim was valid and timely filed, it was denied simply because the estate did not have the money to pay it. However, the personal representative filed a lawsuit against the party responsible for Torres’ death and recovered $300,000. From that money, the DSS expected to be able to recover the money it was owed.

Published on: November 1, 2021

Court found no undue influence where the decedent’s testamentary plan is a natural progression. Probate Proceeding, Estate of Dorris (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

On May 21, 2017, at age 86, decedent E. Lowell Dorris passed away testate. He was survived by 4 nieces and a nephew. However, in his will, he named Luis Freddy Molano as his sole beneficiary. The value of the estate was around $350,000. The decedent’s four nieces initiated a will contest, alleging undue influence. Benjamin Robinson, the executor and also the attorney who drafted the will, requested that the court dismiss the objection of the nieces.

A court will not allow a will that was made under undue influence to be probated. Thus, if the nieces prevailed and the will was found to be invalid, the court would either probate a prior valid will or the court would declare the decedent to be intestate. If the decedent is intestate and the nieces are the decedent’s intestate heirs, the nieces would share in the decedent’s estate.

Undue influence means that the testator drafted a will because someone illegally influenced them to do so. In other words, the terms of the will do not reflect the wishes of the testator, but the wishes of the influencer. The following circumstances tend to show the existence of undue influence:

Published on: September 15, 2021

The special needs of a disabled child should be considered in determining her share of her father’s wrongful death lawsuit proceeds. Conejero v. LaJam, 190 Misc. 2d 393 (N.Y. Sup. Ct. 2002)

by Stephen Bilkis

When someone passes away due to the negligent actions of another person or entity, a wrongful death action can be filed by their personal representative to seek damages. Depending on the specifics of the case, if the lawsuit is successful, the amount awarded can be allocated either as a wrongful death award, a personal injury award, or a combination of both. The manner in which the money is classified determines how it is ultimately distributed.

Money that is allocated as personal injury is awarded to compensate the decedent for the conscious pain and suffering they experienced from the injury or circumstances that resulted in their death. It includes physical pain, even if suffered for a very short time prior to death. It also includes fear, shock, and anguish experienced by the decedent as a result of the circumstances that caused their death. Because personal injury money is the decedent’s loss, it is added to their probate estate. Just like any other asset that is part of a decedent’s probate estate, personal injury money can be used to pay estate debt. Any money leftover would be distributed to the decedent’s beneficiaries and heirs as required by their will or New York law.

Money that is allocated as wrongful death is awarded to the family of the decedent to compensate for economic losses they will suffer as a result of the loss of the decedent’s financial support. Because money allocated to wrongful death is to compensate losses suffered by the decedent’s family (distributees), that money goes directly to the appropriate family members and not to the estate.

Published on: September 1, 2021

Through a kinship hearing the court determined that decedent had children who were entitled to his estate. In re D.W.L, 71 Misc.3d 1204(A) (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

Leaving a will is the best way to ensure that property left in your estate after you pass away goes to the people you want to receive it. Unfortunately, not everyone leaves a will. Intestate succession rules are in place to determine who is entitled to a decedent’s estate in the absence of a will. In other words, if you do not leave a will, New York provides a will for you. Under New York’s law of intestate succession, a decedent’s heirs are always their surviving spouse or children, if any. Other relatives, such as parents and siblings would only be entitled to a decedent’s estate if the decedent passed way without either a surviving spouse or children.

In the case of In re D.W.L., the decedent passed away intestate in February 2007 at the age of 33 due to accidental carbon dioxide poisoning. He was unmarried. He was survived by his mother. There were also 3 minor children who claimed (through their mothers) that the decedent was their father.

In September 2007 the decedent’s mother filed a petition for letters of limited administration. Initially she included in the petition that the decedent had 3 children. A year later she amended her petition to state that he had no children. This is significant because if he had no children, his mother would be his next of kin and entitled to his entire estate. On the other hand, if he had children, they would be entitled to his entire estate and his mother would not be entitled to any portion of his estate.

Published on: July 1, 2021

Court considered whether after-acquired assets must pass by intestacy. In re Estate of Keough, 2021 NY Slip Op 3948 (N.Y. App. Div. 2021)

by Stephen Bilkis

In this case, the Appellate Division considered whether assets acquired by a testator’s estate after the death of the testator should be distributed pursuant to the terms of a will or by the laws of intestate succession.

The purpose of a creating a will is to enable the testator to determine who gets their property after they pass away. Wills can be very general, e.g. leaving all property to one person such as spouse. Or, they can be very detailed, e.g. leaving specific property such as real estate, jewelry, or cash to different people. The common thread is that the testator’s intent is to leave their property, meaning whatever they have at the time of their death, to other people.

There are instances, however, when the decedent acquires property after their death. Because they had no knowledge of the property prior to their death, and certainly not at the time they made their will, they could not have intended to dispose of that property in their will.