New York Probate and Estate Administration Lawyer Blog

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.

Published on: June 6, 2022

Court upheld dismissal of unfounded allegations of lack of due execution. Blasi v. Blasi (In re Martinico), 177 A.D.3d 882 (N.Y. App. Div. 2019)

by Stephen Bilkis

In this case, the Appellate Division, Second Department, considered whether the Surrogate’s Court of Kings County erred in 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, 22014. 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.

Published on: May 30, 2022

Court determined that the issue of undue influence was a triable issue of fact. In re Gobes, 2020 N.Y. Slip Op. 7887 (N.Y. App. Div. 2020)

by Stephen Bilkis

In a contested probate case, the court considered whether there was an triable issue of fact with respect to whether the decedent had been subjected to undue influence at the time that he executed his will.

Background

On December 22, 2016, the decedent died after a terminal illness. He left a will dated December16, 20216. He was survived by three children. One of his children is the objectant. The petitioner submitted the for probate and the objectant filed objections. The grounds for the will contest include lack of testamentary capacity and undue influence. The petitioner moved for summary judgment dismissing the objections. The Surrogate’s Court granted the petitioner’s motion dismissing the objections and admitting the will to probate. The objectant appealed.

Published on: May 16, 2022

Surrogates Court properly revoked the letters without hearing. In re Kaufman, 137 A.D.3d 1034 (N.Y. App. Div. 2016

by Stephen Bilkis

In In re Kaufman, the Appellate Division was asked to determine whether the Surrogate’s Court erred in suspending the letters of co-executors without an evidentiary hearing.

When a testator makes a will, it is their last opportunity to let the world know what they want to happen to their property once they pass away. Testators can also choose to nominate an executor who would be responsible for managing their estate.

Wills are legally enforceable documents, and courts have a duty to uphold their terms. Thus, whenever the court is asked to make a ruling that would circumvent the wishes of a testator, they make sure that there is a very good reason to do so supported by clear evidence.

Published on: May 9, 2022

Court suspended co-administrators due to their animosity toward each other. In re Steward, 2021 NY Slip Op 2395 (N.Y. App. Div. 2021)

by Stephen Bilkis

In In re Steward the court considered whether the Surrogate’s Court erred in denying a motion to suspend co-administrators where the co-administrators were unable to get along.

SCPA § 711 describes the circumstances under which a court can revoke letters of administration:

Wasted assets. The court has the authority to suspend an administrator if the administrator has wasted estate assets by mismanaging estate property, making illegal investments, by misapplying estate assets, or by otherwise injuring estate property.

Published on: May 2, 2022

Court issued preliminary letters over objections. In re Scott (N.Y. Surr. Ct. 2022)

by Stephen Bilkis

In In re Scott the Surrogate’s Court of Bronx County considered whether to extend preliminary letters testamentary over objections.

The petitioner, the decedent’s step daughter, was nominated in the decedent’s December 21, 2019 will to serve as the executor. The decedent died on January 30, 2020. On July 31, 2020, the court issued an order granting preliminary letters testamentary to the petitioner.

“Letters” are an order issued by the Surrogate’s Court that gives an administrator legal authority to manage the estate of a decedent. Typically they are issued an the beginning of a probate case when the will is admitted to probate. Preliminary letters are temporary letters that typically expire after six months. They are issued to an executor nominated in a will that gives them limited authority when there is some sort of delay in the probate proceedings. In this case, the delay related to an unresolved jurisdictional issue.

Published on: April 25, 2022

Court revoked letters testamentary based on failure to perform fiduciary duties. In re Lewner, 2020 NY Slip Op 34365(U) (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

In In re Lewner, the Surrogate’s Court of New York County was asked to revoke the authority of the administrator of an estate on the grounds that he had not been fulfilling his fiduciary responsibilities.

The decedent died on May 19, 2016 leaving an estate with a value of over $8,000,000. The estate had an income of over $3,000,000 from its real estate holdings. Preliminary letters testamentary were issued to respondent on June 10, 2016.

In his petition to revoke the respondent’s preliminary letters, the petitioner alleged that the respondent was unfit to serve as an administrator as demonstrated by numerous instances in which he failed to perform his fiduciary duties. SCPA § 711. As an example, the petitioner described how in the more than four since the decedent’s death, the respondent failed to file estate tax returns, the decedent’s final income tax return, and the fiduciary income tax returns for the estate. As a result, the estate is exposed to significant interest and penalties. In addition, the court’s records showed that the respondent failed to perform his duties as administrator including filing an inventory as required by 22 NYCRR § 207.20.

Published on: April 18, 2022

New York last will and testament failed to meet COVID-related will execution requirements. In re Holmgren (N.Y. Surr. Ct. 2022)

by Stephen Bilkis

In In re Holmgren the petitioner, Philip Holmgren, submitted his sister’s will for probate. Even though the will was not contested, because of the novel circumstances surrounding the execution of he will, the Surrogate’s Court, Queens County issued a written opinion as to whether a will that was executed under the temporary COVID-related procedures was legally sufficient.

Requirements for executing a will in New York

For a will to be valid in New York, the law requires that it must be executed in a specific way.

Published on: April 11, 2022

Execution of will satisfied presence requirements under special COVID-related rule. In re Ryan, 71 Misc.3d 217 (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

In In re Ryan the petitioner asked the Surrogate’s Court of Broome County to admit a will to probate that was executed under the requirements of special rules that were put into effect to make sure that social distancing requirements where followed.

Requirements for executing a will in New York

In New York, for a will to be valid, it must be executed according to the requirements of New York law. This means that the will must be signed and witnessed.