New York Probate and Estate Administration Blog

In 1935, a trust fund was created by a mother in favour of her son which provides among others that in the event of the death of her son, the trust shall be divided in 6 equal parts and one of which shall be held in trust for her grandson. The trust also stated that should the grandson die, the trustee should distribute the remainder of the funds according to the will of the said grandson or the laws of intestacy should there be no will executed by the latter in favour of his heirs. The trust agreement was entered into between the mother and a trust company in New York which was also the domicile of the mother at that time.

The son who was the original beneficiary, died in 1962 while the grandson died in California in 1965 survived by his widow and a daughter as well as 5 children coming from the first marriage. The grandson had a will and it was admitted to probate in California since it was his domiciliary. The will of the grandson specifically directed that all his remaining trust fund be further divided into two trusts for the benefit of his spouse and daughter with a proviso that the trust for the daughter be terminated 21 years after the last survivor of his wife, his daughter, and the children of his daughter who were living at the time of his death, has died.

A New York Probate Lawyer said the original trustee in New York commenced a proceeding for the final accounting and settlement of the trust intended for the grandson. The executor of the grandson’s estate which was in California instituted a separate proceeding involving the issue of heirship at the Superior Court of California. The executor claimed that the will executed by the grandson should be construed in a manner that the trust should be terminated upon the death of the grandson’s daughter. The New York court from which the final accounting and settlement of the trust was filed, decided to hold further proceedings pending the determination of the California Superior Court of the issues brought to its attention.

In 1967, the Superior Court of California granted the motion by the grandson’s executor and declared that it is indeed the intent of the grandson/testator that the remaining trust be terminated in order to preserve the intention and validity of the will because to rule otherwise will violate the law against perpetuities. A Staten Island Probate Lawyer said the California court ruled that based on the provisions of the will, any residue coming from the original trust and still remaining 21 years after the death of the grandson’s wife should be terminated.

Based on the ruling of the California Superior Court, the children by the first marriage of the grandson appealed the court’s decision because they were supposed to share in the residual trust had it not been declared terminated by the court. They appealed 6 months after the decision was made on the estate litigation and argued that the decision was erroneous because it could not have been the intention of the testator to terminate the residual trust which was supposed to be distribute to the decedent’s heirs and that their failure to attend and contest the earlier court proceeding was due to excusable neglect, surprise, inadvertence, or mistake.

In affirming the decision of the California Superior Court which ordered the limitation of the trust’s duration so as not to be violative of the rule on perpetuities, the tribunal argued that since the appellants did not contest at the right time the proceedings in the California Court, they cannot now be allowed to question the validity of the ruling which has become final and executory. They had the chance to join the will contest proceedings before the court but they chose not to and just waited how the same will be determined. Long Island Probate Lawyers said failing to get a favourable ruling for their ideal estate administration desires, they cannot now be allowed another opportunity to disturb the California ruling which has become final and executory.

Issues concerning the will of deceased persons must be handled by experts. A skilled lawyer can provide the necessary legal expertise that will guide the concerned parties into a fruitful conclusion of a court proceeding involving the estate of deceased persons. Stephen Bilkins and Associates is a known law office when it comes to handling legal issues concerning estates of deceased persons and they can give the needed legal expertise.

A decedent, who is a resident of Texas and domiciled at Mexico, has possessions in Cayman Islands.

A New York Probate Lawyer said the decedent, while living in New York in 1988, opened an investment account in London. During his lifetime, he deposited over $1,300,000 through a New York bank and his account was handled by an investment manager of the London investment house. The deceased named his marital son as the beneficiary of said investment account.

In 1989, the decedent made an arrangement with a trust officer of another bank to establish a discretionary off-shore trust account in Cayman Islands using the funds from his investment account in London.

In April 1990, he executed a “Letter of Instructions and Wishes to Establish a Trust and Company” giving absolute discretion to the trust in case of his incapacity and he sent an “Asset Transfer Instruction Letter” to London investment house ordering transfer the remaining balance of his investment account to his trust account in Cayman Islands. Thereafter, he named his other non-marital son residing in Canada to be the beneficiary of said trust. The following day, the decedent committed suicide causing his death.

The spouse of the decedent’s ex-wife was declared as administrator in Mexico responsible for decedent’s estate administration. The Mexican Probate Court declared decedent’s marital son in London as the sole and universal heir of his father’s estate. Bronx Probate Lawyers said the London investment house made arrangements with the trust bank in Cayman Islands to manage the decedent’s assets and was later on liquidated by London investment house as per order of the trust bank.

Proceeds of the liquidated trust were transferred to a bank account in Cayman Islands.
A year after the death of the decedent, his administrator from Mexico petitioned New York Surrogate Court for ancillary letters of administration involving a bank account in said state. The real purpose of the estate litigation is to conduct discovery proceedings in tracing the decedent’s investment fund in London in excess of the $1,200,000 transferred to his trust account in Cayman Islands. The administrator appointed a New York Estate Administration lawyer to be an ancillary administrator who alleged that both the investment house in London and the trust company in Cayman Islands made an unauthorized transfer of funds of the decedent. He, furthermore, claimed that the New York Surrogate Court have power to conduct the turnover and discovery proceedings upon its issuance of the ancillary letter of administration over decedent’s small bank account in New York. The same Court concluded that it possessed and acquired jurisdiction over the subject matter of the proceedings and that an ancillary administrator’s powers are not limited to the collection of decedent’s assets but also covers will contest. The proceedings were questioned by both the London investment house and a bank in Cayman Islands handling the trust account of the decedent.

The New York Surrogate Court’s jurisdiction is being inquired into whether or not it has jurisdiction over the decedent’s assets at Cayman Islands.

Brooklyn Probate Lawyers said the Supreme Court ruled that the New York Surrogate Court has no jurisdiction over decedent’s assets in Cayman Islands. According the Surrogate’s Court Procedure Act (SCPA) Article 16, “ancillary administration shall be granted in this state only when there is an actual administration in the domiciliary jurisdiction.” The aforementioned provision does not allow New York Surrogate Court to overcome jurisdiction of the Mexican Probate Court where the decedent is domiciled covering assets located outside New York. Furthermore, similar provisions in SCPA made the Supreme Court to conclude that authority of the Surrogate’s Court over assets of non-domiciliary decedent in an ancillary proceeding is generally limited to properties within its State.

Death in the family causes a person great grief and discomfort, which may tend you to forego the handling of the properties of the deceased just to cope with such loss. In situations like these, services of qualified lawyers are readily available at Stephen Bilkis and Associates.

To avoid ordeals of dealing with the assets left behind by a family member, you can contact Stephen Bilkis and Associates for advice and a free consultation.

A resident of Connecticut died in 1936. He left a will duly admitted for validation in the State of Connecticut. He created a testamentary trust providing payment of the one third of the income to a life beneficiary, his nephew. The nephew bearing the same name as his uncle is a resident of Cattaraugus County, New York. The instant proceeding is brought in the Surrogate's Court, Cattaraugus County in connection with the administration of the estate of the deceased nephew. The proceeding follows proceedings earlier brought in the validation court of Fairfield County, State of Connecticut referable to intermediate and final accountings of the testamentary trustee, a Chemical Bank.

A petition of a trust company for the determination of the validity and enforceability of claim of a chemical bank to the last will and testament of the man was filed. New York Probate Lawyers said that the trust company was the appointed representative for the administration of the estate and the said chemical bank was the beneficiary of a large trust set up by a will. The facts in support of the petition have been agreed to by opposing counsel in a written condition. It states that the man properly accepted to validate his will in the state of his residency.

The life beneficiary of a man died and with his death, payments of income terminated as well as the trust. The remaining principal of the trust was directed to be paid over to the designated remaindermen.

During the operation of the trust, Nassau Probate Lawyers said that the chemical bank filed intermediate accountings. In an account filed, commissions on income were claimed by the chemical bank and the same were allowed in an amount which is not set forth in the requirement of facts. For reasons not stated, it positively appears, however that only a portion of the payment allowed on the accounting were paid by the chemical bank. Some were allowed to be remained unpaid. In addition, all income in the hands of the trustee was paid over to the life beneficiary thus, depleting any source of cash in the hands of the trustee for payment of the allowed. The chemical bank again, paid over all trust income then on hand to the beneficiary, retaining no dues supposedly for the period.

Discovering its failure to collect the noted allowed and allowable payments, the chemical bank contained in its final account, filed to the court of the deceased residency. After setting forth various calculations for receiving, it concludes that the due payment plus taxes will be charge to the properties of the man.

Under the set facts, the court considered the discrepancy between the amount of commissions presently claimed and the amount of commissions purportedly allowed by the deceased’s court of residency as insignificant. Further, it appears from the set facts that the claim for a tax summary letter supposedly allowed under the court order is not asserted by the claimant. Whether it has been abandoned or waived does not positively appear and it is sufficient that it has not been asserted.

The attorney for the trustee concedes in his memorandum that the order of the court, with authority to supervise asset administration, is not in such form as to be an enforceable judgment in the state. He concedes that a suit in their superior court would be required to reduce the order of the court with authority to supervise asset administration. The court review of the applicable law supports the statements of the trustee's attorney.

In adopting the procedures of the uniform act to the case for the decision, it appears that a filing of an authenticated copy of the order of the man’s residency court with any county clerk in the state of New York, together with the required affidavit stating the amount due and other required information would give such order the status of a decision of the Supreme Court of the State of New York immediately enforceable by execution. Under the terms of the act the foregoing result would apply despite the fact that the order of the other court, without additional suit and reduction to judgment in the superior court is unenforceable in that state. In brief, the provisions of the uniform act would improve the effect and finality of the order of the man’s residency court over that accorded it in the state of rendition. Whether or not the legislature of the State of New York envisioned any such peculiar result, it has, nevertheless, clearly provided for it.

Brooklyn Probate Lawyers said that reassessment by the legislature of the act and possible amendment thereof might be in order.

Based on records, the uniform act then provides in detail for the effect of a foreign judgment, decree or order filed in accordance with the recited provisions for the effect of a foreign judgment, decree or order filed in accordance with the recited provisions.

The order of the man’s residency court has been submitted as a part of the set facts. After reciting that an account of the trustee had been revealed to the court for payment, it ordered a hearing to be held on the payment of the account. It further ordered that notice of such hearing be given both by publishing a copy of this order in a newspaper having a circulation in said district, and by mailing a copy of the order, postage prepaid, to the beneficiaries under the trust to the legal representative of those who have died and other at their last known addresses. In addition, it is important to note that the trust company, as legal representative did not appear in person or through an attorney in any proceeding in the man’s residency court relative to the accountings of the trustee. The set facts indicate clearly that the representative bank was in default of appearance in any and all such proceedings.

It is not claimed or argued that the New York legal representative of the properties committed a tortuous act either within or without the State of the deceased man. The asserted legal basis for liability of the legal representative for the return of trust income voluntarily paid, but alleged to be subject to trustee's commissions is unjust improvement. The proceedings giving rise to the asserted liability is grounded in the areas of equity. Further, it is not asserted that the New York legal representative was engaged in business in the State of the deceased, nor in interstate commerce. Similarly, it appears that the accounting proceeding did not involve real property within the State of the deceased.

The court holds that the applicable principle of law of the State of New York in force at the death of the man was that the payment of all trust income without condition of trustee's commissions on such income constituted a waiver of commissions on the income. The court further holds that the trust in issue was made subject to the principle of law.

Given that it is factually set that the trustee did pay out all income without the condition of commissions. The decision of the court is that the claim of the trustee for the return of commissions is invalid, an order of the court of the man’s residency to the contrary notwithstanding. But, such order is void for the want of jurisdiction. Comity should not be accorded an order which improperly construes the applicable New York law. The claim of the trustee is rejected. Decision is for the executor.

It is important that we choose who to entrust with our properties with. Legal issues arise when we are not aware whether or not our legal obligations are taken cared off. If you or anyone you know get into this kind of situation, call the New York Estate Administration Lawyers at Stephen Bilkis and Associates.

The case regarding Genevieve Tisdale’s estate is about getting a jury trial in connection to the revocable trust executed by her at the same time with her last will and testament. Ms. Tisdale died on October 6, 1995. It is said that her will dated December 15, 1994 was executed with about $2.1 million revocable trust. The estate in the will was under $400,000. The trust fund is the one to be used for estate taxes and other expenses. The estate is divided to different beneficiaries, including charities. The bequest ranged from $10,000 to $200,000. There was an amendment made to the cash gifts made on July 31, 1995.

Michael L. McDermott was the draftsman of both the will and the trust. He is also named as the guardian of the net estate except the tangibles. He is to allocate the state according to the will. If the trust fails, the will also is refers to its terms. Mr. McDermott, a New York Probate Lawyer mentioned, is an Illinois lawyer not admitted in New York. Three months before the testatrix signed the will was the first time that they had met. This issue was already submitted to court.

Five of the family beneficiaries, which are all nieces and nephews, petitioned the court to withhold the trust in both proceedings after the will enter probate. They also asked that in both cases, there be a jury trial on their protest about the execution, capacity, undue influence and fraud. The recipients particularly object to, allegedly, the charitable beneficiaries reflecting Mr. McDermott’s choices and not the decedent’s. They cited the provision for twenty-five percent of the trust remainder is distributable to Spring Hill College in Mobile, Alabama, which is Mr. McDermott's alma mater. Twenty-five percent of the trust remainder is given to the Evans Scholars Foundation where Mr. McDermott is a trustee. Twenty-five percent of the trust remainder is gifted to National Louis University located in the Chicago suburb where Mr. McDermott lives. Lastly, $250,000 is distributable to Misericordia Home in Chicago. They also claim that Ms. Tisdale is your typical New Yorker, who has lived in the Upper East side of Manhattan most of her adult life.

According to Westchester County Probate Lawyers, the contest is sure to have a jury trial. The question is if it is available to the revocable trust. The main reason why people go for the revocable trust is because, for the most part, the Court is not involved in the administration of the estate. Contrary to wills, in revocable trusts do not require sending out notices, they however, give time of a few months for people to appear or contest it. Once it enters probate is the time that notices are sent out. Once in probate they will also have time to contest the will. The law expressly grants probate proceedings a jury trial but not appeals to set aside another instrument. There are cases like reclaiming a property that is given a jury. A trust is not equitable so cannot be admitted to a trial by jury.

It is also said that in trying the case for the will and the trust, will have identical issues to tackle. To avoid any unnecessary and impractical proceedings, with the two having the same provisions it is better have them tried at the same time. If or the other is tried first, there will have a profound effect on the hearing for the one tried later. Long Island Probate Lawyers also says that in hearing the two as one it will deter underhanded acts by people trying to get what they want. The court then denies the petition to set aside the revocable trust.

People may get tricked by people to get something from them. It also applies to people who are executing the will. As the family of the decedent it is much better that you have a skilled legal counsel who will protect your rights. One who knows his way in the proceedings so your presentation of your side is not seen as a sneaky way to get the money for yourself.

For help going through the whole proceeding with you and help you understand what is happening and lay the options for you, you can set an appointment with Stephen Bilkis & Associates. We have offices all over New York and you can also contact them online or at 1-800 NY - NY- LAW. We will handle cases from New York and Long Island.

In February 14, 1980, the will of decedent was contested by her daughter. The decedent died in January 11, 1980, and the will questioned is dated December 1, 1979. In the dececent's last will and testament, she bequeathed all her property to five charities. There is a gift of Israeli bonds to the State of Israel. The will also stated that her daughter receives no part of her estate as she had adequately provided for her in her lifetime.

The will further specifies that in case that the will fails and becomes useless all the property will go to her trustees. In conformance to the trust agreement that she has set up while she was alive. The inter vivos trust was also set on the same date of the will. The paperwork says that the trust will be funded if in any case that the gift, devise or legacy made under the last will and testament made by decedent will be ineffective. The trustees on the document are the same people named as executors of her will. Meaning, the trustees will give the income from the fund to the same charities she has named in her will, says a New York Probate Lawyer. After five years, the charities then will receive the principal divided equally between them.

Ms. Lippner’s will included a “no contest” clause. From the records, it specifically stated that any person who will contest the will, it does not matter what reason will lose the right to any part of the estate which, would have been theirs. Aside from these papers documenting litigation between the petitioner and her daughter, were attached. It had the history of the litigation to show that Ms. Epstein, although the only descendant was really intended to be excluded from the estate distribution.

The daughter filed four final objections to probate. The first one was the failure of due execution, second was forgery, third was the lack of testamentary capacity and the last one was fraud and undue influence. Failure of due execution, according to a Brooklyn Probate Lawyers, is the will having all the requirements of the law like having two witness signatures. The excessive nature of the will was not included because the courts decided that if the will fail by any other reason, then, the disposition to the charitable institutions will go with it.

The executor asserted that the daughter is not in the position to contest the will. This, he states, is because either way she will not get anything. If the will take effect, she gets nothing. If the will fail, she still gets nothing.

The court’s review stated that the ‘no contest’ clause does not affect the daughter’s right to contest. Her claim is to discredit the whole will. If the will became ineffective because of her reasons then the ‘no contest’ clause will also be worthless. The part of the will that says that her daughter is to receive nothing from her will is for the estate itself, does not affect her right for the probate. If the daughter was only arguing the part of the will for excessive charitable gift then she would most probably be denied the case, but what she is disagreeing with was the will as a whole. The rule that if the person who is contesting will receive a monetary benefit invalidates the contest only applies if the will is attacked in part. The inter vivos trust need not be discussed as it is a separate agreement. For these reasons, the appeal for summary judgment to dismiss the objections to the probate was denied.

When you are faced with this situation where a last will and testament seek to deprive you of property that is rightfully yours, an experienced Queens Estate Litigation Lawyer can help you make sure your rights are upheld. They can give you your options. They will be the one to see to it that you are not robbed of any right to the part of the estate that should be yours.

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