Articles Posted in Estate Administration

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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

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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.

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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 21st birthday or if the parent failed to provide financially for the child before their 21st 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

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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.

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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.

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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.
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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.

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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.

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In the Matter of Qyra, the Surrogate’s Court considered an issue related to the allocation of the money award in a wrongful death lawsuit.  On February 25, 2010, while walking in Central Park, Elmaz Qyra was struck by a tree branch and died. The administrator (personal representative) of his estate filed a lawsuit to recover damages and was awarded a $3,000,000 settlement.  The administrator petitioned the Surrogate’s Court to issue a decree allocating the entire settlement to wrongful death.  The objectant argued that a portion should be allocated to personal injury.

When someone dies as a result of negligence, the personal representative of the decedent’s estate can bring a lawsuit to recover losses suffered by the decedent as well as losses suffered by the decedent’s family. If the lawsuit is successful and money is awarded, the Surrogate’s Court must determine how to allocate the money- to personal injury, to wrongful death, or a combination of both.  The manner of allocation determines to whom the money is distributed.

Sums that are allocated to personal injury compensate the injured party—the decedent—for the conscious pain and suffering they suffered because of the negligence. Since the money awarded for personal injury belongs to the decedent, it is considered probate property and is  added to their probate estate. Sums that are allocated to wrongful death compensate the decedent’s next of kin for the losses they suffered because of the negligence.  That money is distributed directly to the next of kin. It is never a part of the decedent’s estate.

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In this case, during a 1404 examination of the two execution witnesses, Surrogate’s Court had to determine if the decedent’s will had been properly witnessed given the unusual execution ceremony.  For a will to be valid in New York, it must be properly executed. This means that the will must be signed at the end by the testator or at the direction of the testator in their presence.  It must also be signed by at least two witnesses in the presence of the testator.  Under SCPA § 1404, before a will can be admitted to probate, at least two of the attesting witnesses must appear in court and be questioned by the court.

In Matter of William Ryan the testator was in poor health at the time his will was drafted.  In addition, because of COVID, there were restrictions on gatherings.  As a result, attorneys found themselves conducting business differently in they would under pre-pandemic conditions.  The original plan was for the will to be executed in the parking lot of the office of the attorney who drafted the will.  However, Ryan’s conditioned worsened before that happened, and he was hospitalized.  The hospital had implemented strict rules to minimize the spread of COVID.  As a result, guests were not allowed to visit patients.  In order to execute the will, a hospital social worker had to assist.

The social worker delivered the will to Ryan and was present when he signed it.  The video feature of a cell phone was used along with a computer at the attorney’s office so that the attorney and the witnesses could be “present” when Ryan signed the will.  Immediately after Ryan signed the will, the original was driven back to the attorney’s office where the two witnesses executed the attestation clause and the witness affidavit. The attestation clause and affidavit had been stapled to the original will in a will.

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