New York Probate and Estate Administration Lawyer Blog

Published on: June 2, 2026

Attorney-in-Fact Must Act in Principal’s Best Interest When Making Gifts Under a Power of Attorney. Matter of Ferrara, 7 N.Y.3d 244 (2006)

by Stephen Bilkis

A power of attorney is a legal document that allows one person, known as the principal, to authorize another person, known as the attorney-in-fact or agent, to handle financial and other affairs on the principal’s behalf. While a power of attorney can grant broad authority, that authority is not unlimited. In Matter of Ferrara, 7 N.Y.3d 244 (2006), the New York Court of Appeals considered whether an attorney-in-fact who was expressly authorized to make unlimited gifts to himself could transfer nearly all of the principal’s assets to himself. The case focused on the duties owed by an attorney-in-fact and the meaning of the statutory requirement that gifts be made in the principal’s best interest.

Background Facts

George J. Ferrara was a retired stockbroker living in Florida. In June 1999, he executed a will leaving his entire estate to the Salvation Army. The will specifically stated that he intended to leave nothing to family members or other individuals. He later executed a codicil reaffirming those wishes.

Published on: June 1, 2026

Summary Removal of Executors Requires a Hearing When Material Facts Are Disputed. Matter of Duke, 87 N.Y.2d 465 (1996)

by Stephen Bilkis

The executor of an estate is responsible for gathering assets, paying debts, and carrying out the terms of a decedent’s will. Because an executor serves in a fiduciary role, New York law permits a court to remove an executor who engages in misconduct or whose actions threaten the estate. However, courts are generally reluctant to override a testator’s choice of executor. In Matter of Duke, 87 N.Y.2d 465 (1996), the New York Court of Appeals considered whether a Surrogate’s Court could summarily remove executors of a billion-dollar estate without first conducting an evidentiary hearing.

Background Facts

Doris Duke died in October 1993, leaving an estate valued at more than $1 billion. Much of her estate was left to charitable organizations. Her will named Bernard Lafferty, who was described as her assistant and confidant, as the individual coexecutor of her estate. The will gave Lafferty authority to select a corporate coexecutor, and he chose United States Trust Company.

Published on: May 31, 2026

Court Approved Medicaid Asset Protection Plan Through Gift and Loan Strategy. Matter of M.L., 2009 NY Slip Op 52160(U)

by Stephen Bilkis

Long-term nursing home care can quickly consume a person’s life savings. As a result, families often explore Medicaid planning strategies designed to preserve assets while still allowing an individual to qualify for Medicaid benefits. When an incapacitated person is under a guardianship established pursuant to Article 81 of the Mental Hygiene Law, a guardian generally must obtain court approval before implementing such planning. In Matter of M.L., 2009 NY Slip Op 52160(U), the Supreme Court, Bronx County, considered whether a guardian should be permitted to engage in Medicaid planning through a combination of gifts and a promissory note loan designed to preserve assets for the incapacitated person’s intended beneficiary while allowing the incapacitated person to become eligible for Medicaid coverage.

Background Facts

M.L. was an incapacitated person under an Article 81 guardianship. The court had previously appointed a guardian of both her person and property. The guardian sought authority to implement a Medicaid asset protection plan that involved gifting a portion of M.L.’s assets and loaning another portion through a promissory note arrangement.

Published on: May 24, 2026

Guardian Allowed to Transfer Entire Estate for Medicaid Planning. Matter of Shah (Helen Hayes Hosp.), 95 N.Y.2d 148 (2000)

by Stephen Bilkis

Medicaid planning often involves difficult decisions about how assets should be used to pay for long-term care. When an individual becomes incapacitated and can no longer make financial decisions, those decisions may need to be made by a court-appointed guardian. In Matter of Shah (Helen Hayes Hosp.), 95 N.Y.2d 148 (2000), the New York Court of Appeals addressed whether a guardian could transfer all of an incapacitated spouse’s assets to the community spouse as part of a Medicaid planning strategy. A community spouse is the husband or wife of a nursing home resident who continues to live at home or elsewhere in the community rather than in a nursing home or other long-term care facility. The case became one of New York’s most significant Medicaid planning decisions and confirmed that guardians may engage in Medicaid planning on behalf of incapacitated individuals under appropriate circumstances.

Background Facts

Bipin Shah lived in New Jersey with his wife, Kashmira Shah, and their children. In 1996, he suffered a catastrophic injury while working in New York and lapsed into a coma. He was eventually transferred to Helen Hayes Hospital in Rockland County, New York, where he remained institutionalized with little expectation of recovery.

Published on: February 3, 2025

Court Ordered Sale of Brooklyn Property Shared by Siblings Graffeo v. Paciello, 46 A.D.3d 613 (2d Dep’t 2007)

by Stephen Bilkis

In Graffeo v. Paciello, the Appellate Division, Second Department, reviewed whether a brother could force the sale of a Brooklyn property held with his sister as tenants in common. The case involved a long-standing dispute over ownership, control, and whether restrictions in a recorded deed could block a partition action.

Background Facts

In 1976, the siblings’ maternal grandmother transferred full ownership of a three-family dwelling in Brooklyn to her granddaughter, Debra Carol Paciello. Two years later, in 1978, Debra transferred the property to herself and her brother, Louis Anthony Graffeo, as tenants in common. The deed included a restriction that the property could not be sold or transferred during their mother’s lifetime unless she consented. After their mother passed away, both siblings had to agree to any sale or transfer, unless she had removed the restriction before her death.

Published on: January 22, 2025

Whether the Surrogate’s Court has the authority to modify the 100% allocation ordered by Supreme Court. Matter of Hoyte, 2021 NY Slip Op 21090

by Stephen Bilkis

Matter of Hoyte, 2021 NY Slip Op 21090 involves the distribution of settlement proceeds following an untimely death, raising questions of jurisdiction and allocation between personal injury and wrongful death claims. The Petitioner, Clathina McMillan-Hoyte, seeks approval for the distribution, while the Albany County Department of Social Services (DSS) objects, asserting a Medicaid lien on the personal injury portion.

In New York, the allocation between personal injury and wrongful death claims involves determining how to distribute settlement proceeds. Recoveries designated for wrongful death, governed by EPTL 5-4.4, are distributed among the decedent’s distributees according to their pecuniary injuries. This process aims to prevent creditors from accessing funds allocated to wrongful death, emphasizing the distinct nature of these claims. Such allocations are subject to careful legal scrutiny, providing a framework for just and equitable distribution in cases involving personal injury and wrongful death.

Background Facts

Published on: January 3, 2024

Court refused to rule on whether future legal action would trigger an in terrorem clause. Matter of Follman 2023 NY Slip Op 23292

by Stephen Bilkis

An in terrorem clause, commonly found in wills and trusts, is a legal provision designed to deter beneficiaries from challenging the validity of the document or taking legal action against the estate. Also known as a no-contest clause, it threatens forfeiture of inheritances if a legal challenge is initiated. The clause aims to promote the testator’s intent, discourage unnecessary litigation, and maintain the integrity of the estate plan. While in terrorem clauses in New York wills and trusts are permitted, they are very narrowly construed.

Matter of Follman 2023 NY Slip Op 23292 involves a request for the construction of articles within three separate inter vivos trusts established by the decedent and his wife, Esther Follman. The petitioner, Ahron N. Follman, seeks a ruling that filing a petition for information and/or accountings will not trigger the in terrorem clauses in these trusts. Respondent Avraham Follman opposes the motion, asserting that the in terrorem clauses have already been triggered. This blog explores the background facts, the legal issue at hand, the court’s holding, and provides a comprehensive discussion of the case.

Background Facts

Published on: January 2, 2024

Surrogate’s Court refused to restrain a foreign proceeding, allowing probate to proceed in Israel. Matter of Cohen 2004 NY Slip Op 24426

by Stephen Bilkis

When attempting to probate a will in New York that originated in another country, several issues may arise. The court must navigate differences in legal systems, questioning the validity of the foreign will under New York law. Considerations include the deceased person’s connection to New York, the residence of beneficiaries, and the executor’s location. The court may assess if the decedent directed probate in New York, weighing the convenience of parties involved. Potential conflicts arise, as the court must balance New York’s interest with the foreign jurisdiction’s primary role in determining the will’s validity. These complexities highlight the importance of careful legal evaluation and the potential need for the court to exercise discretion in deciding whether to accept jurisdiction over the foreign will.

Matter of Cohen 2004 NY Slip Op 24426 involves a dispute among the surviving children of Anna Cohen, who passed away in 1991. The conflict centers on the probate of Anna Cohen’s will in Israel, with Esther Green seeking to challenge the letters of administration granted to her sister, Deb Ireland, in the United States.

Background Facts

Published on: December 27, 2023

Surrogate’s Court considered whether to enforce a settlement agreement made through alternative dispute resolution.Matter of Eckert 2022 NY Slip Op 50095(U)

by Stephen Bilkis

When someone dies intestate in New York, it means they passed away without a valid will. In this situation, the New York’s laws step in to determine how the deceased person’s estate will be distributed. If the decedent has both a surviving spouse and a child, New York’s intestate succession laws come into play.

The surviving spouse receives the first $50,000 of the estate plus half of the remaining balance. The child, or children, inherit the other half of the remaining balance. This legal framework is designed to ensure that the surviving spouse is provided for, but it also recognizes the rights of the decedent’s children to a share of the estate.

Matter of Eckert, 2022 NY Slip Op 50095(U) revolves around the intestate estate of James Eckert, who passed away in 2018, sparking a legal dispute between his surviving child, Michelle Eckert, and his spouse, Tara Connelly. The conflict arose when Michelle Eckert contested the marriage’s validity and sought administration of the estate. Despite an initial agreement reached during an ADR session, a subsequent breakdown in negotiations led to Michelle Eckert filing a motion to enforce the settlement.

Published on: December 26, 2023

Court denied the requested transfer of the trusts’ situs to Delaware. Matter of Bush 2003 NY Slip Op 23933

by Stephen Bilkis

This legal case involves JPMorgan Chase Bank’s petition to resign as a trustee for trusts created by Harriet F. Bush and Donald F. Bush. The court has already granted their request for resignation and appointed J.P. Morgan Trust Company of Delaware as the successor trustee. The remaining issue is the transfer of the trusts’ situs to Delaware to avoid New York State fiduciary income tax. All interested parties have consented to the requested relief.

Background Facts

JPMorgan Chase Bank, as trustee for trusts created by Harriet F. Bush and Donald F. Bush, seeks court approval to transfer the situs of the trusts to Delaware. The primary motive is to avoid New York State fiduciary income tax. The court had previously granted the resignation of JPMorgan Chase Bank as trustee and appointed J.P. Morgan Trust Company of Delaware as the successor trustee.