Estate Administration

Published on: January 2, 2023

Medical evidence not sufficient to show lack of capacity. Matter of Estate of Paul Tucker, 2020 NY Slip Op 31604(U) (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

Lack of capacity to make a will in New York refers to a situation where the testator (the person making the will) does not have the mental capacity to understand the nature and consequences of his or her actions when executing the will. In order to have the capacity to make a will in New York, the testator must have a general understanding of the nature and extent of his or her property, the natural objects of his or her bounty, and the effect of executing the will. Lack of capacity may result from a variety of factors, including mental illness, dementia, or other conditions that affect cognitive functioning.

In a will contest in New York, medical evidence can be used to prove that the testator lacked the capacity to execute the will. This may involve presenting medical records, expert testimony from treating physicians, or other evidence to establish the testator’s mental state at the time the will was executed. However, just like with any evidence, the court will determine whether it is sufficient.

Background

Published on: December 12, 2022

Spouse of decedent can have limited access to decedent’s Google accounts. In re the Estate of Serrano, 56 Misc. 3d 497 (N.Y. Sur. Ct. 2017)

by Stephen Bilkis

The administration of an estate of a decedent requires a personal representative to identify and gain access to their property. Unlike personal property, real estate, and even financial accounts, electronic accounts of decedents can present special challenges for survivors to access. Typically, a request must be sent the custodian of the electronic records who will request a court order. In the case of In re the Estate of Serrano, the Surrogate’s Court was asked to issue a court order directing Google to allow a decedent’s surviving spouse to access the decedent’s Google accounts.

Background

The petitioner’s spouse died. The petitioner wanted to gain access to the decedent’s Google accounts, including his Google email, contacts, and calendar. The petitioner’s stated purpose was to let the decedents friends know of his passing and to close out any unfinished business. The petitioner requested access to the accounts from Google. Google responded by asking for a court order. The petitioner filed an amended affidavit with the Surrogate’s Court requesting authority to access his deceased spouse’s Google’s accounts.

Published on: December 5, 2022

Children of adopted-out child in an intraframily adoption were entitled an intestate share. In re the Estate of LaBelle, 51 Misc. 3d 658 (N.Y. Sur. Ct. 2016)

by Stephen Bilkis

Under New York law, children of who are adopted-out are not entitled to an intestate share of their biological parents’ estate. However, exceptions to this rule were enacted to the Domestic Relations Law starting in 1987. In 1987, the New York legislature revised the statute by adding a provision to Domestic Relations Law § 117 permitting adopted-out children in intrafamily adoption situations to inherit from their birth family members in certain specified circumstances.

The issue in the case of In re the Estate of LaBelle is whether the current rule allowing adopted-out children in intrafamily adoptions to inherit from their birth family members applies to a child who was adopted out prior to 1987.

Background

Published on: November 23, 2022

Court will grant a petition to access contents of a safe-deposit box only to a distribute, beneficiary, or fiduciary. In re the Estates of Adelewitz, 24 Misc. 3d 374 (N.Y. Sur. Ct. 2009)

by Stephen Bilkis

While people often use safety deposit boxes to hold valuable items such as jewelry, cash, and collections, they also use them to store important papers such as wills and other estate documents. Upon death, it is important to immediately access the contents of safe deposit boxes, particularly if they contain the decedent’s will.

In New York, the only way to access the safe deposit box of a decedent is with a court order. The court will only entertain petitions to open safe deposit boxes if they are from a the nearest surviving distribute, a beneficiary, or the fiduciary. SCPA §2003. In the case of In re the Estates of Adelewitz, the court considered who has the right to petition access to safe deposit boxes that were part of the estates of a husband and wife- Steven and Rita Adelewitz.

Background

Published on: November 21, 2022

Surrogate’s Court determined that Richmond County was the proper venue for a probate proceeding. In re the Estate of Bonora, 44 Misc. 3d 171 (N.Y. Sur. Ct. 2014)

by Stephen Bilkis

In New York, the Surrogate’s Court system has jurisdiction over estate matters. There are Surrogate’s Courts in each county in New York. The proper venue for an estate proceeding is determined by where the decedent was domiciled at the time of their death. Domicile refers to the location where a person has their primary home. Determining domicile can be tricky when someone is a long-term patient at a healthcare facility. In the case of In re the Estate of Bonora, the Surrogate’s Court had to determine whether the decedent was a resident of Kings County or Richmond County at the time of her death.

Background

For many years before her death, decedent Palma Bonora resided in Kings County, New York. However, on March 31, 2008, she was admitted to St. Elizabeth Ann’s Health Care and Rehabilitation in Staten Island, Richmond County, New York. She passed away on July 12, 2013 while she was still a patient there. The Public Administrator of Richmond County file for letters of administration and was granted temporary letters on December 13, 2013. The Public Administrator of Kings County moved to intervene and filed objections, alleging that there are common questions of law or fact, including whether the decedent was domiciled in Richmond County or Kings County at the time of her death.

Published on: August 1, 2022

In a turnover proceeding, the Appellate Division upheld the determination that the funds were the property of the estate and not gifts. In re Kelligrew, 63 A.D.3d 1064 (N.Y. App. Div. 2009)

by Stephen Bilkis

During estate administration, a major responsibility of a personal representative is to identify, secure, and inventory estate assets. In some instances, a turnover proceeding is required to ensure that all assets that are part of the estate are accounted for. A turnover proceeding is a legal proceeding that occurs during which the representative of an estate requests that property of the estate in the possession of third parties is returned to the estate. SCPA § 2103.

In Kelligrew, the court considered whether nearly $200,000 in funds transferred to via check drawn on the decedent’s account were assets of the decedent’s estate or a gift.

Background

Published on: July 25, 2022

In a turnover proceeding, the court found that the petitioner largely did not meet their burden. Matter of Mahoney, 2021 N.Y. Slip Op. 32702 (N.Y. Sup. Ct. 2021)

by Stephen Bilkis

In the process of estate administration, when there is a disagreement about who has title to property or there has been a theft of assets, the executor of an estate can initiate a turnover proceeding to get more information and to recover property that belongs to the estate. SCPA § 2103

Background

Decedent died on July 13, 2017. She left a will and was survived by six adult children as well as her long-time companion, the petitioner William Koughn. The decedent and Koughn split their time between homes in Florida and in New York. However, in February 2017, the decedent’s children forced her to move from Florida to New York and initiated a guardianship proceeding. Shortly before her death, one of the decedent’s sons, George Mahoney, was appointed as her guardian.

Published on: July 25, 2022

Father was not barred from sharing in intestate estate of his daughter because his negligence caused her death. In re Wigfall, 20 Misc. 3d 648 (N.Y. Misc. 2008)

by Stephen Bilkis

Under New York law, when a child dies, typically their parents are their next of kin and are entitled to share in their intestate estate. However, a parent can be disqualified from inheriting from the child’s estate under two conditions: if the parent abandoned the child before their 21^st birthday or if the parent failed to provide financially for the child before their 21^st birthday. EPTL § 4-1.4. In addition, there is a long-standing rule in New York that a person is not permitted to profit by their own wrongdoing.

Because children generally do not have significant estates. However, if the child’s death is due to an accident, they child may have been awarded a significant settlement from a personal injury claim for their conscious pain and suffering. In addition, the child’s next of kin may be entitled to share in a settlement for wrongful death.

Background

Published on: June 27, 2022

Misconduct must be shown to remove an estate administrator. In re Matter of Estate of Corey, 65 Misc.3d 524 (N.Y. Surr. Ct. 2019)

by Stephen Bilkis

Once an administrator has been appointed, SCPA § 711 provides that they can be removed or suspend under specific circumstances. In In re Matter of Estate of Corey, the Surrogate’s Court was to remove an administrator because he allegedly exceeded the scope of his fiduciary duties and responsibilities.

Background

The decedent died on July 8, 2018 at the age of 92. She was survived by three children and two grandchildren. She was intestate and left an estate valued at about $30,000,000. All of the beneficiaries were eligible to serve as administrator. However, they all agreed that attorney Markello should be appointed administrator. Because Markello was not a beneficiary of the decedent’s estate, all of the beneficiaries had to approve his appointment. Letters of administration were issued to Markello on August 8, 2018.

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.