New York Probate and Estate Administration Blog

This case is in regards to the estate of Mark Rothko. Kate Rothko and Christopher Rothko are petitioners, while charitable beneficiaries are also cross-petitioners. The respondents are Bernard J. Reis, Theodoros Stamos, Morton Levine, Marlborough Gallery, Inc., Marlborough A.G., and Francis K. Lloyd. The Mark Rothko Foundation, Inc. was listed as an intervener.

The Case

A New York Probate Lawyers said Mark Rothko, a worldwide renowned abstract expressionist artist passed away on February 25, 1970. The petitioners are the artist's children. The children seek restitution for their father's estate, both in terms of paintings that were sold by the parties involved, and in financial compensation for the paintings which were already sold to non-party purchases. They also seek to have their legal fees compensated. Essentially, the suit is about whether the children, should have control over their father's estate, or whether the executors named should. The Attorney General represented the people of New York due to the charitable interest in the case. Reis and Stamos are charged with acting in a conflict of interest, while Levine is charged with negligence regarding the sale of the property. All are charged with not fulfilling their legal obligations correctly.

Examination

The respondents were prohibited from selling paintings without court permission, although the children allege that this has taken place. Mr. Reis is accused of a conflict of interest based on his positions as executor, friend and professional advisor of the deceased and as director of Marlborough Gallery. His positions as executor and as director for the gallery had opposing interests. Because of the direct conflict of interest, the courts evaluate his behavior as the same as self-dealing.

Levine and Stamos also face a problem because they knew that Reis was acting in a direct conflict of interest and did nothing, leaving them liable, in addition to Stamos' own actions against the estate which lead to further liability. Nassau County Probate Lawyer said because of the failure of the three to properly execute the will of the estate, the court saw fit to remove them as fiduciaries.

When determining restitution to the estate, the value of the paintings sold off by the Marlborough respondents needed to be calculated. A well-respected art historian, Professor Shapiro, compared Rothko's value and popularity to that of artists like Jackson Pollock. Others, including the Director of the Guggenheim and an international art dealer also testified to the importance and value of Rothko in the art world.

Further complicating the issue is that the respondents were found to be in violation of the order issued by the court which restrained them from in any way disposing of any of the paintings included in the estate. NY Probate Lawyers said this entitles the estate for restitution for those paintings which were improperly sold off. The court also needs to determine if the correct value for reparations to the petitioners should be the value of the work when it was sold, or the present value. However, following Scott on Trusts and Restatement of Trusts, it is found that the petitioners in such a case should be entitled to the value of the objects at present day if they have appreciated in value, which the paintings have. The petitioners used Ben Heller, an expert, to evaluate the value of the paintings and papers included in their father's estate. However, the courts thought his values were too high and had to lower them somewhat when assessing damages.

Results

At the end of the process, the Marlboroughs and Lloyd were fined $3,332,000 for violating orders laid down by the court. If any of the paintings which contributed to the value of this liability are returned, that amount will be subtracted from the fines owed by any of the respondents. Levine is separately liable for $6,464,880 plus interest. To discharge their liabilities to the estate, Reis, Stamos, MNY and MAG were found owing $9,252,000. Finally, the 658 paintings included in the estate which had not already been sold are to be returned to the family.

Stephen Bilkis & Associates offers legal services throughout the metropolitan area of Manhattan. If you find yourself in need of legal advice, whether it be for am estate administration, will or probate matter, you may contact one of our offices to set up an appointment for your free consultation. Our lawyers will help you determine what your best course of legal action will be based on your current situation.

The plaintiff and appellant of this case is Gray Wolf Corporation. Gray Wolf Corporation is being represented by Warren B. Rosenbaum from Woods, Oviatt and Gilman, LLP. The defendant and respondent et al of the case is Gleason Estates Associates, LP. Gleason Estates Associates LP is being represented by Gregory J. Mascitti from Leclair Ryan. The case is being heard in the Appellate Division of the Supreme Court of the State of New York in the fourth judicial department. The judges who are hearing the case are Martoche, JJ, Lindley, Smith, and Scudder, P.J.

About the Case

A New York Probate Lawyer said this case was started by the plaintiff as a foreclosure action and then moved to a summary judgment based on the complaint. The defendant of the case made a cross move for a summary judgment to dismiss the case altogether.

Case Facts and Findings

From the beginning of the case it is noted that the Supreme Court came to the proper conclusion that the defendant was not obligated to provide the defendant with specific financial statements. This is in accordance with the different documents that were signed by both the parties as well as signed by the parties and the United States Department of Housing and Urban Development.

Additionally, the court finds that the plaintiffs’ motion for a summary judgment on the foreclosure complaint was properly denied. Suffolk County Probate Lawyers said that on the records that have been provided to us there is an issue with whether or not the defendant was in fact default on the loan.

For the same reason as above, we have made the decision that the Supreme Court made a mistake when they granted the cross motion of summary judgment to the defendant to dismiss the case.

Court Rulings

Westchester Country Probate Lawyers said that based on the above findings and the information that has been provided to the court, we have modified the order that granted the cross motion for dismissal of the case to the defendant. We feel that this is the only error made in the case and we rule in favor of the plaintiff on this particular motion.

Legal situations can become quite stressful. It is difficult to determine what your next step should be. At Stephen Bilkis & Associates, we offer free consultations to help you through any type of legal situation you may be experiencing, whether you have an estate adminstration matter, a will contest or probate litigation. Our team of professional lawyers can help you determine the best steps to take for your particular situation. You may contact one of our offices located throughout New York City to set up your free consultation.

In this case, Scott H. See Jr. is the appellant. Baltic Estates, Inc. are the respondents.

History

A New York Probate Lawyer said this case involves the recovery of damages for personal injuries. There was another action that was tied to this one, but the two were eventually consolidated. With the limitations involved in his brief, the plaintiff makes an appeal against an order issued by the Supreme Court of Dutchess County which was entered in July of 2008. This order denied a motion that the appellant made which moved for the dismissal of a verdict reached by a jury. The conclusion reached by the jury had been on the side of the defendant in regards to the liability in the case. The appellant contends that the majority of the evidence should have lead the jury to rule in his favor instead of falling on the side of the defendant, which he feels is grounds for a new trial. By the same token, he appeals against the judgment made by the court on February 24th, 2009. This ruling was also in favor of the defendant.

Results

The appeal against the order issued as a result of the jury verdict was dismissed. The appeal against the other order passed by the same court at a later date was also dismissed, and the ruling of the original judgement affirmed in any aspect that was appealed against by the appellant.

Further, a single bill of costs is awarded to the respondent. Brooklyn Probate Lawyer said the reason that this appeal has to be dismissed is because no right of direct appeal exists for the appellant. Once the judgment from the original action was entered, the direct right of appeal no longer applied.

Also, the only reason that a jury verdict should be dismissed is if the verdict they reached appears to be impossible. That is to say, that if any fair and reasonable interpretation of the evidence put before a jury can indicate the reasoning of their ruling, then the verdict should never be set aside. Going against a jury verdict simply because someone argues that the majority of the evidence seemed to be on their side is a more complicated matter.

Basically, the jury in this case was presented with two separate versions of events. These events both claimed to be factual in nature, but were in conflict with each other on several points. This means that the only way for the jury to reach a verdict is to interpret the data given to them as best they can. As long as they do this in a fair manner, the ruling should be upheld.

Therefore, Long Island Probate Lawyers said that the plaintiff's movement that, pursuant to CPLR 4404(a), the jury verdict that ruled in the favor of the original defendant should be set aside because most of the evidence presented at the original hearing favored the plaintiff has to be denied on these grounds.

Stephen Bilkis & Associates offers legal services throughout the metropolitan area of Manhattan. If you find yourself in need of legal advice, whether it is a will contest, estate administration or trust, you may contact one of our offices to set up an appointment for your free consultation. Our lawyers will help you determine what your best course of legal action will be based on your current situation.

The plaintiff in the case is Island Estates Management, while the defendant is MBA-Manorhaven, LLC.

History

A New York Probate Lawyer said the plaintiff had an agreement to buy a property from the defendant, based on a contract signed in December of 1998. A deposit of $350000 was placed to secure the purchase, but the final purchase price was to be based on how many units got approved for the subdivision. Island Estates had an option to review the property which was to last 60 days. During that window they could terminate the agreement if they chose. That agreement was extended, in writing, several times, a fact that neither party argues.

The agreement also includes obligations on behalf of the buyer. For example, Island Estates had a year to get a zoning permit so that subdivision could go forward. Brooklyn Probate Lawyers said the seller also had thirty-days to provide written notice to cancel the agreement and refund the deposit. This couldn't be exercised if the failure to meet milestones was beyond the control of the buyer. However, the buyer had a maximum of two years to meet these milestones unless they paid $100,000 for an extension, which they did not.

A problem arose when environmental contamination was found on the property; although MBA-Manorhaven had not represented that there was such according to Island Estates. Long Island Probate Lawyers said it was agreed that along with extending the deadline that MBA would pay for the cleanup costs of the site up to the amount of $400,000, while Island Estates would pay any amount beyond that up to $600,000, while anything beyond that would be shared 50/50.

Island Estates alleges that MBA-Manorhaven breached their contract by failing to provide bills showing the amount of the cleanup costs, and also that they did not complete the cleanup as required in the agreement. Based on the various portions of the agreement, closing of the deal would not be completed until Island Estates received the Special Use Permit and Site Plan. However, that would not be issued until the environmental conditions were improved. MBA-Manorhaven is using that breach of contract as its reason for termination of the contract. Island Estates would like to instead close the deal.

Submitted as evidence that MBA-Manorhaven has a poor track record of cleaning up environmental problems was the claim that the DEC stated that MBA-Manorhaven has “...not always been as aggressive about remediating pollution as they have been about debating its existence...” That statement and the elapsed four year period shows that MBA-Manorhaven did not take sufficient action to correct the problem of the environmental status of the property.

When a party breaches a contract, they are not permitted to use their own breach as a reason for canceling the agreement. Essentially, MBA-Manorhaven sought to get out of any obligation they might face simply by failing to conform to their responsibilities in the agreement. This would not be an act of good faith, and is why the defendant's request to dismiss the case must be denied.

According to the initial contract, if the cleanup costs were going to be more than 2 million, then either party could cancel, unless the other party notified them within a time limit that they would pay for costs in excess of that amount. MBA-Manorhaven sought to cancel, but within the time limit, Island agreed to pay the costs, rendering that cancellation invalid.

Results

None of the reasons given by MBA-Manorhaven was able to create a valid reason by which they could cancel the contract with Island Estates. As a result, the defendant's move to dismiss the case is denied. Further, the counsel for both sides of the contract was ordered to move to a conference that would start in motion the proceedings of completion of the original deal.

Stephen Bilkis & Associates offers legal services throughout the metropolitan area of Manhattan. If you find yourself in need of legal advice, whether it is for a will contest, estate administration issue or probate matter, you may contact one of our offices to set up an appointment for your free consultation. Our lawyers will help you determine what your best course of legal action will be based on your current situation.

On 10 May 1977, a decedent who is an attorney died. On 27 June 1977, letters of administration (estate administration) were issued to the Public Administrator, County of Nassau. He received the keys to the decedent's residence from a Nassau County police detective on 11 May 1977 and made a thorough search of the residence. The public administrator found a sealed envelope, among other things, bearing the words "Copy of Deed to Lutheran Cemetery," "Copy of Last Will and Testament" (carbon copy) bearing the decedent’s signature. On the back of the envelope, written across the flap was the decedent’s signature.
The objectants, three (3) of the cousins named in the instrument and five other individuals whose status was contested by the proponent in the instant case, conceded that the document was written in the decedent's handwriting. No evidence was offered to prove that the document was a carbon copy although the proponent herself alleged that it was a carbon and not a ribbon copy. The back of the last page was blank except for the following handwritten words: "Copy of Last Will and Testament" and "Original in Safe Deposit Box in Jam. Savings Bank."

The instrument provided for the disposition of real property and bequeathed $300.00 to each of the decedent’s eight cousins and the residuary estate to two of the cousins. It appointed the two cousins as executors of the estate.

A New York Probate Lawyer said at the time the decedent’s death, the safe deposit box at the Jamaica Savings Bank was no longer rented. An inspection of the decedent’s safe deposit box at the National Bank of North America in Williston Park also failed to disclose any instrument purporting to be the last will and testament of the decedent or a copy thereof.

Was there a revocation of a six-page handwritten document dated 17 June 1960 when only an alleged carbon copy of which has been offered for probate (estate litigation or will contest) as the last will and testament of the decedent?

In the case at bar, the witnesses, whose names were printed on the instrument offered for probate, testified regarding the execution and attestation of the decedent's will in 1960, the signing of a copy of the will by the decedent, in their presence, and the retention of both the original and the copy by the decedent. It was the proponent’s contention that the instrument offered for probate was a duplicate original rather than a copy of the original will and that the existence of a duplicate original overcomes the presumption of revocation; and, in the alternative, that the presumption of revocation is rebutted by evidence that the decedent retained the carbon copy among her important papers and treated the copy as an original. In support of the proponent’s allegations to prove non-revocation, offered into evidence were - a letter from the decedent dated April 1968 (addressed "To Whom It May Concern" stating that executrix of her estate) and an envelope (labeled "Open in case of death or supreme emergency") containing the decedent's telephone book and Personal Record and Data Book.
Suffolk County Probate Lawyers said that under the rules, where a will is last known to be in the possession of the decedent and is not found at his death, the presumption arises that the decedent himself destroyed the will animo revocandi. This presumption of intentional revocation, however, may be rebutted by circumstantial evidence. Where the proponent of a will cannot produce the executed ribbon copy but produces a fully executed carbon copy which was in the decedent's possession at the time of his death, the presumption of revocation is overcome. Here, there was no evidence that the witnesses, whose names were printed on the carbon copy signed the copy.

For the execution and attestation of wills, it is required that a will must be signed at the end by at least two witnesses. Westchester County Probate Lawyers said the privilege of informal testation is granted only to mariners at sea and military personnel, thus, cannot be applied in the instant case. Since there is no proof that the decedent satisfied these requirements, the conclusion must be that the instrument was not executed with the necessary formalities and is at best a conformed copy of the original. The presumption of revocation is therefore operative.
Further, it has been ruled that the retention by the decedent of a reproduced copy of his will along with an original codicil executed subsequent to the execution of the will was held to rebut the presumption of revocation. No such circumstances exist in the present case. The words on the back of the carbon copy explicitly stated that the original will was located in a safe deposit box. Evidently, the decedent did not believe that the carbon copy offered for probate was her original will and she did not have any intention for it to be accepted as such.

In addition, declarations of a deceased concerning revocation or non-revocation are only admissable as part of the res gestae, the reason being that it is likely that a decedent may have attempted, during his lifetime, to "silence importunity and elude questions" concerning the testamentary disposition of his property and therefore statements made to third parties concerning his will have little credibility. This reasoning applies with equal force to statements in writing. Written declarations of a decedent which are not received as part of the res gestae are inadmissable on the question of revocation. In any event the letter if admitted into evidence, at best might prove non-revocation as of 1968, more than nine years prior to the decedent's death. The 1968 letter did not constitute a republication of the 1960 instrument. For it to be such, it is required that there be a re-execution and re-attestation for republication of a prior will.
The proponent here failed to offer sufficient proof to rebut the presumption of revocation. Consequently, the petition for probate was denied.
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On 4 July 2009, the decedent died prompting the petitioner to employ the services of a lawyer. A retainer Agreement was entered into by the parties stipulating the amount of attorney’s fees to be paid. Thereafter, the petitioner questioned the amount billed by the lawyer as his attorney’s fees alleging a wrong calculation of the estate as the basis, among others.

How much should, actually, be the attorney’s fees? What should be included or excluded?
A New York Probate Lawyer said the court has ruled that the ultimate responsibility for approving legal fees that are charged to an estate and the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate lies with them. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the court is required to exercise his or her authority "with reason, proper discretion and not arbitrarily".

In determining the cost of legal services, several factors are considered and these include - time spent; complexity of the questions involved; nature of the services provided; amount of litigation; amounts involved and the benefit resulting from the execution of such services; lawyer's experience and reputation; and, customary fee charged by the Bar for similar services. The fee must be the result of all the elements set forth, in balance. The legal fee must also bear a reasonable relationship to the size of the estate. A sizeable estate permits adequate compensation, but nothing beyond that. The size of the estate can operate as a limitation on the fees payable, without constituting an adverse reflection on the services provided.
NY Probate Lawyers said the burden of proof as to the reasonable value of legal services performed rests on the attorney performing those services. Contemporaneous records of legal time spent on estate matters are of importance.

An attorney may not be reimbursed for expenses that the court normally considers to be part of overhead, such as photocopying, postage, telephone calls, messengers and couriers, express deliveries and computer-assisted legal research and other items of the same matter. The court concluded that it would permit reimbursement for such disbursements only if they involved payment to an outside supplier of goods and services, adopting the standards set forth by previously decided similar cases. The court prohibited reimbursement for ordinary postage and telephone charges other than long distance.

A Queens Probate Lawyer said that the retainer agreement was unclear at best. It states a fee of five percent of the gross estate for the "probate" (estate litigation or will contest) of the decedent's will. The administration of the estate (estate administration) was not addressed. The billing records submitted to the court were prepared after the petitioner commenced this proceeding; they were not prepared contemporaneously. The bill included entries of 2.3 hours for the "trip to the Court to file the petition - the payment of the filing fee, ".45 hours for the "trip to the Post Office - mailed out notices certificates mail return receipt" and for other services that are not properly billable as attorney's fees, such as faxing. Additionally, the time spent on many items exceeded that which would be expected for the tasks listed. A good example was when the respondent billed 1.75 hours of time on a meeting with a process server to "review and discuss[] service." There was no delineation of disbursements.

All the same, the respondent did perform certain services that resulted with the will being filed for a probate proceeding and the estate administered. Based on the benchmarks set forth above, the court fixed the respondent's legal fee at $18,000.00, inclusive of disbursements. The respondent was ordered to refund to the petitioner, as executor of the estate, the amount of $17,375.00 (difference between the amount paid and the amount allowed).

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On 4 February 2007, a resident of Nassau County died leaving a will dated 20 September 2006. She was survived by her two (2) children, a grandchild and two (2) minor grandchildren. Such will has been offered for probate by the nominated executor (decedent’s husband).

The will created a trust to be funded with the "exemption amount." The trust shall terminate upon the death of the decedent’s husband who has a limited testamentary power of appointment over the trust principal. If or to the extent that the decedent’s husband failed to exercise the limited power of appointment, the remaining trust principal is payable to the decedent’s husband 1993 Insurance Trust. The residuary estate is then payable to the decedent’s husband. The decedent’s husband and the children are named under the will as trustee and successor trustees, respectively. Also, "no bond or other security shall be required of any Executor for the faithful performance of such person's fiduciary duties in any capacity." Thereafter, the attorney-draftsman submitted an affidavit and averred that he inadvertently used the word "Executor" instead of "fiduciary." Apparently, the decedent's prior will dated 2 April 1993, which contained one trust, dispensed with a bond in the case of any "fiduciary."

In the instant case (estate litigation or estate administration) there is no will contest. However, the court is asked to dispense with the filing of a bond by the nominated trustee due to a purported scrivener's error in the will.

The rules mandate that a testamentary trustee post a bond unless the will provides otherwise. The bond filed by the testamentary trustee shall be "in such amount as the court directs." A testamentary trustee is required to file a bond where the will does not exempt the trustee from this requirement unless clear and convincing reasons are presented to dispense with the bond or to fix it at a reduced amount. Such clear and convincing reasons might be the consents or a showing that the filing of a bond is not economically feasible." The court did not dispense with the filing of a bond by the trustee. The court reasoned that "a will is required to contain written directions as to a decedent's intent and to be executed with certain formalities to avoid speculation with regard to the last wishes of the decedent". A New York Probate Lawyer said that although the court noted that it had no doubt that the decedent trusted the proposed trustee since he did in fact nominate him, it concluded that it could only speculate as to whether the decedent would have dispensed with a bond if he had known the cost. Moreover, the court declined to dispense with the bond based upon the consent of the income beneficiary. The court reasoned that if the income beneficiary failed to live until the trust terminated, there would be no bond to protect the interests of his issue, who were either too young to give their consent or were not yet in existence.

NYC Probate Lawyers said the court ruled that reformation of a will may occur simultaneously with a will's admission to probate where the provision in question clearly makes no sense as drafted and appears to be the result of a scrivener's error. "Generally, extrinsic evidence may not be used to show that a provision was inadvertently omitted from a will, but [the court] should admit extrinsic evidence if there is an ambiguity on the face of the will.

Clearly, the bond provision is evident and does not appear on its face to be the obvious result of a scrivener's error. Queens Probate Lawyers said that hence, the court has declined to reform the will. On the other hand, based upon the attorney-draftsman's affidavit, clear and convincing reasons have been presented to dispense with the requirement of a bond by the trustee (upon submission of consents by the decedent’s children and their respective spouses, the grandchild of legal age and the trustee of the 1993 Insurance trust).

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The niece of a deceased ice cream chain owner has ended up in bankruptcy court, indicated a firm of New York Estate Planning Lawyers.
It is her assertion that she is the rightful heir and administrator of the ice cream fortune – not the foundation to which the money has gone. She already made several attempts in New York, before filing personal bankruptcy in Fort Lauderdale, saying she had $32 million in litigation claims as her assets.
There are some who say it was a good idea, legally, for her to file bankruptcy. It may have held back some orders from the New York judges who are still overseeing her conflict with the foundation. Unfortunately for the would-be heiress, it did not quite go that way.
Currently, the woman would like to be released from the bankruptcy court. The foundation is attempting to have her case converted to a Chapter 7. A trustee was set up to oversee her estate. One reason this was allowed, sources informed, is that the litigant was not insuring her property. A significant piece of said property was her Fort Lauderdale home, which has been assessed at $1.68 million.
The litigant filed a personal Chapter 11 bankruptcy in February. She has no attorney representing her. At the time of the filing, she claimed to have only $614,000 in assets.
It is difficult to gather further information on the woman – New York Probate Lawyers were unable to contact her and her Fort Lauderdale house appears abandoned.
According to the litigant, however, someone killed her uncle in 1990, after he learned someone was stealing from him. She attempted to get her uncle’s body exhumed in 2007, but a judge denied her request.
The ice cream chain owner started with only one delivery truck and expanded to more than 800 stores by the time of his death. Now based in Atlanta, the company can boast more than 500 franchised and food service locations. NY Estate Planning Lawyers are advising clients in New York City and Staten Island to be aware of this situation and take care not to wind up the same.
The company is part of an even larger company that franchises and operates more than 3,200 locations with such famous names as Cinnabon, Schlotzsky’s, and Auntie Annie’s Pretzels not only in the United States, but in 35 other countries as well.

Continue reading "South Florida Woman’s Fight for Inheritance Ends Up in Bankruptcy Court" »

According to one NY Probate Lawyer, this is the year to give. Thanks to sweeping changes in the laws governing the estate tax by President Obama late in 2010, making a lifetime gift is now easier than ever.

Lifetime gifts have long been the preferred method for transferring wealth from one family member to another. Lifetime gifts are not subjected to the heavy tax burden which posthumous gifts typically carry. The catch, in the past, was that lifetime gifts were capped at a relatively low level before the Gift Tax kicked in, meaning that the amount that could be transferred to a spouse or other loved one was actually quite small. The new law raises that cap to an all-time high.

If you are an Asset Planner or New York Estate Planning Lawyer, this new loophole could mean big business in the next two years. The new law is set to expire in 2012, and no additional plans have been made in Congress, meaning that the amount of time taxpayers have to take advantage of the new law could be short. Planners in New York City and Long Island are aware of these changes.

Some on Capitol Hill have indicated that this new wave of laws could be heralding the end of the estate tax itself. Others have indicated that it is only a temporary tax-relief outlet to stimulate the economy. In either case, estate planning lawyers are seeing an increase in the number of lifetime gifts, as well as in the number of “I love you” will, where couples with significant means leave assets directly to each other, without sheltering the money in a residuary trust, charitable fund, bypass trust, or other tax shelter annuity.

Continue reading "Considering A Lifetime Gift? This is Your Year, says New York Probate Lawyer" »