Estate Administration

Published on: May 10, 2023

Appellate Division upholds Surrogate’s Court finding of testamentary capacity. Matter of Estate of Neary, 53 A.D.3d 579 (N.Y. App. Div. 2008)

by Stephen Bilkis

Matter of Estate of Neary addresses the issue of testamentary capacity and undue influence in estate planning. The case involves the appeal of the Surrogate’s Court’s decision, which had granted probate of the decedent’s will despite challenges to the decedent’s testamentary capacity and allegations of undue influence.

Factual Background

John Neary executed a will in 1999, leaving his entire estate to his wife, Catherine Neary. After Catherine passed away, John executed a new will in 2003, which left his estate to his sister, Ann Neary, and her children. John’s son, Michael, contested the validity of the 2003 will, claiming that John lacked testamentary capacity and that the will was the product of undue influence by Ann.

Published on: April 26, 2023

Appellate Division found that there was sufficient evidence to support the finding of testamentary capacity. Matter of Estate of Richichi, 878 N.Y.S.2d 43 (N.Y. App. Div. 2009)

by Stephen Bilkis

The distribution of a deceased individual’s assets can be a complex and emotional process. Disputes can arise over the interpretation of a will or trust, as well as allegations of undue influence or fraud. The case of Matter of Estate of Richichi is a prime example of such a dispute, where family members of the deceased individual contested the distribution of her assets on the basis of lack of testamentary capacity.

Lack of testamentary capacity refers to a person’s inability to make or alter a will due to mental incapacity. In New York, a person must possess testamentary capacity in order to create or modify a will. To have testamentary capacity in New York, a person must understand the nature and extent of their property, understand the persons who are the natural objects of their bounty, and have a reasonable understanding of the effects of their will. This requires that the person have the ability to comprehend and appreciate the consequences of their decisions and understand the interrelationships among those affected by the will.

A lack of testamentary capacity can be due to a variety of reasons, including but not limited to, mental illness, dementia, and intoxication. If it can be shown that the testator lacked testamentary capacity at the time the will was created, the will may be deemed invalid.

Published on: April 24, 2023

Executor of an estate was removed for mismanaging estate assets. In re Kamen, 835 N.Y.S.2d 48 (N.Y. Sur. Ct. 2007)

by Stephen Bilkis

In the legal world, the term “fiduciary” refers to a relationship where one party (the fiduciary) owes a duty of loyalty and care to another party (the beneficiary). In the context of estate planning and probate law, fiduciary relationships arise between the executor of an estate and the beneficiaries. The executor has a fiduciary duty to act in the best interests of the beneficiaries and to manage the estate’s assets with care. In re Kamen involves a dispute over the conduct of an estate executor and the executor’s alleged breach of fiduciary duty to the beneficiaries.

Factual Background

The case of In re Kamen involves the estate of Dr. Albert Kamen, who passed away in 2004. Dr. Kamen was a well-respected psychiatrist who had amassed a significant estate over the course of his career. After Dr. Kamen’s death, his wife, Elaine Kamen, was appointed as the executor of his estate.

Published on: March 27, 2023

Executor did not have documentation to support the amount of work she performed. Matter of Newland, 846 N.Y.S.2d 317 (Sur. Ct. 2007)

by Stephen Bilkis

The fees that are paid to an executor or administrator for managing and administering an estate are called executor fees. In Matter of Newland, the Surrogate’s Court was asked to determine if the fee that the executor requested was reasonable.

Background

In this case, the decedent, Charles Newland, had appointed his niece, Rosemary Newland, as the executor of his estate. Rosemary hired an attorney to assist her in administering the estate and sought to receive fees for her services as executor. The estate’s beneficiaries objected to the fees, arguing that Rosemary’s services were minimal and that the fees she was seeking were excessive.

Published on: March 1, 2023

Risks and benefits of a small estate affidavit. Estate of Krysztofowicz, 70 Misc.3d 1202 (2020)

by Stephen Bilkis

The Estate of Krysztofowicz highlights the importance of proper estate planning and the potential risks of estate disputes. In addition to providing guidance on will contests, the case also offers insights on small estate affidavits, which can be used in some cases to transfer assets without the need for a formal probate proceeding.

A small estate affidavit is a legal document that can be used to transfer the assets of a deceased person to their heirs without the need for a formal probate proceeding. In New York, small estate affidavits are governed by Section 1310 of the Surrogate’s Court Procedure Act (SCPA). The can only be sed if the value of the estate is $50,000 or less and there is no real property. The use of a small estate affidavit can be a cost-effective and time-saving way to transfer assets, but it may not be appropriate in all situations.

This option may be useful in situations where the decedent’s assets are relatively small and their estate does not include real property. It can save time and money by avoiding the more lengthy and formal probate process. The small estate affidavit allows the heirs or beneficiaries to claim the assets without going through the court, but it is still important to ensure that the affidavit is properly executed and filed with the Surrogate’s Court.

Published on: February 20, 2023

Court considered whether to disqualify someone from serving as an executor due to their criminal history. Matter of the Estate of Perlman, Matter of the Estate of McCarthy, 2020 NY Slip Op 20348 (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

In New York, a personal representative is a person who is appointed by the Surrogate’s Court to manage the affairs of a deceased person’s estate. This individual is responsible for handling the deceased’s assets, paying debts, and distributing the remaining assets to the heirs or beneficiaries of the estate. The personal representative can either be an executor, named in the deceased’s will, or an administrator, appointed by the court if no will exists. The personal representative has a fiduciary duty to act in the best interests of the estate and its beneficiaries.

Background

Kathleen McCarthy was a resident of New York and died in March 2019, without leaving a will. She was survived by her husband, Thomas McCarthy, and her two adult children, Brendan and Shannon McCarthy. The value of her estate was approximately $1.4 million.

Published on: January 23, 2023

Court considered whether to disqualify someone from serving as an executor due to their criminal history. Matter of the Estate of Perlman, Matter of the Estate of McCarthy, 2020 NY Slip Op 20348 (N.Y. Sur. Ct. 2020)

by Stephen Bilkis

In New York, a personal representative is a person who is appointed by the Surrogate’s Court to manage the affairs of a deceased person’s estate. This individual is responsible for handling the deceased’s assets, paying debts, and distributing the remaining assets to the heirs or beneficiaries of the estate. The personal representative can either be an executor, named in the deceased’s will, or an administrator, appointed by the court if no will exists. The personal representative has a fiduciary duty to act in the best interests of the estate and its beneficiaries.

Background

Kathleen McCarthy was a resident of New York and died in March 2019, without leaving a will. She was survived by her husband, Thomas McCarthy, and her two adult children, Brendan and Shannon McCarthy. The value of her estate was approximately $1.4 million.

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