Articles Posted in Queens

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A New York Probate Lawyer said the records reveal that in this contested probate proceeding, three motions are before the court. Decedent died and is survived by several brothers and sisters and by an alleged spouse, the objector herein, to whom she was married on August 8, 1953. The propounded paper, makes no provision for the objector and recites, as the reason therefor, the decedent’s belief that the objector was not truly her husband since he had previously been married. The decedent further expressed her belief that objector had abandoned his wife in Italy and that his first marriage had never been legally terminated.

A New York Estate Lawyer said that the issue has been joined by the interposition of an answer alleging lack of testamentary capacity, fraud, duress and undue influence and claiming an interest in the estate as the spouse of the deceased.

A Queens Probate Attorney said that the proponent now moves to dismiss the objections on the ground that objector has no status. The third motion before the court, submitted by the proponent simultaneously with his motion to dismiss the objections, seeks to examine the objector on the facts of the alleged prior marriage, the preliminary issue herein. The objector opposes this motion on the ground that ‘there is no authority for the taking of depositions for use upon a motion,’ citing Matter of Erlanger’s Will and Standard Foods Products Corp. v. Vinas Unidas.

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A Probate Lawyer said that records reflect that the Testatrix’ will give the sum of $2,000 in trust for the benefit of the beneficiary who was entitled to the corpus and accumulated income thereof when he became 21 years of age. The will was admitted to probate in 1945 and the executrix thereunder qualified. It is undisputed that the estate was sufficient to pay all trusts and other bequests in full. After letters testamentary were issued, testator qualified as trustee for the benefit of the said beneficiary. By his objection to the trustee’s account, the beneficiary asks that the trustee’s estate be surcharged for the amount of the fund and income thereon. The testator asserted ‘Not a single dollar of these trusts funds was ever received by me’. Testator in an affidavit, filed in this Court before his death, offered no explanation for his failure to take the fund into his possession and did not attempt to justify his failure. Relying on Farmer’s Loan & Trust Co. v. Pendleton, defense assert (1) it was beneficiary’s burden to establish affirmatively that the deceased trustee was negligent in not reducing the fund to his possession, and (2) his representatives upon an accounting are chargeable only for the amount found to be in their hands.

A New York Estate Lawyer said the court ruled that there are significant distinctions between the cited case and the instant matter. The Court of Appeals pointed out: ‘The character of this action should be kept in mind. It is purely an action for an accounting, and nothing else. Therefore the plaintiff was entitled only to the relief appropriate to such an action. It was not an action for breach of trust.’ In that case there were two trustees and it appeared that a portion of the fund in question was in the hands of the co-trustee for which the testator would not be liable unless the fund subsequently came into his hands. Further distinctions could be pointed out but these are enough. In the instant matter the basis of the claim of the beneficiary is the admitted failure of the testator to take into his possession the fund concededly available. In support of their position, testator quote this from the cited decision, supplying emphasis: ‘The contestants were required to show by competent proof the amount of the estate in the hands of the decedent as executor or trustee thereof, and his representative upon an accounting was chargeable only for the amount thus found to have been in his hands.’ That paragraph continues this way: ‘The defendant being unable to state the account the account so far as it related to any portion of the trust fund that came into the hands of her testator, if any, the plaintiff, before it was entitled to a final judgment for any sum, was required to show not only that a portion of the fund came into the hands of the defendant’s testator, but also to show the amount; and the court could properly charge the defendant only with that amount, as in no case will a trustee be held for more than he receives, if he is in no fault and has committed no breach of the trust.’

Queens Probate Lawyers said that in Bank of New York v. N. J. Title Guarantee & Trust Co., the court approved the proposition that a trustee is liable to the beneficiary if he neglects to take proper steps to redress a breach of trust committed by a predecessor fiduciary, and observed that this was too clear to require detailed argument. In Matter of Kistler’s Will, it was held that, in view of the assumption of the trust duty imposed by the terms of the will, the trustee’s failure to reduce the fund to possession presented a potential basis of liability in equal measure as if the trustee had performed affirmative improper acts, noting ‘Nonfeasance is as potent a ground for surcharge as misfeasance.’

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This is an appeal case being heard in the Second Department Appellate Division of the Supreme Court. The plaintiffs in the case are James P. Johnson III, et al. The defendant in the case is Murray Berger. The case also has Neil R. Gerst et al., as third party defendants, plaintiffs-appellants. Kenneth Murphy et al., are the third party defendants and respondents. The defendants, third-party plaintiffs-appellants are represented by Chesney, Murphy & Moran, Westbury. The third party defendant-respondent Kenneth Murphy is represented by Gabor & Gabor with Hope Senzer Gabor for counsel. The third party defendants-respondents Gary Darche is represented by both Koopersmith, Feigenbaum & Potruch and DiMascio, Meisner & Koopersmith.

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The defendant’s third party plaintiffs are seeking an appeal from an order made by the Queens County Supreme Court involving a case of legal malpractice. A New York Probate Lawyer said the original order granted the motions for summary judgment for the dismissal of the case in favor of the third party defendants. The order dismissed all of the third party complaints that were asserted against each of them.

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Every good New York Estate Planning Lawyer knows that estate panning is about preparing for the unthinkable. They frequently work with people for whom the prognosis is poor, stepping in to facilitate estate planning, long-term care planning, or to establish and administrate the estate after the death of a loved one.

Unfortunately, even the most seasoned New York Estate Planning Lawyer cannot plan for the unexpected when the source of confusion is the federal government, as has been the case in recent years. Estate planning lawyers rely heavily on the ability to map out the future for the people they work with- to meet with a client, and give them a picture of what the taxation structure will be like for the next five or ten years. Attorneys in Queens and New York are aware of any changes which take place in these areas.

The estate planning community has been in a state of flux over the past year. Because Congress failed to make a prompt decision regarding estate tax legislation, no estate taxes were imposed by the internal revenue service for tax year 2010. Nearing the end of the congressional year, congress passed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, which contains significant cuts and changes to the current estate tax laws.

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