A person’s residence and legal domicile are not always the same. This distinction can become important in estate administration because a Surrogate’s Court generally has jurisdiction based on the decedent’s domicile at the time of death.
In Matter of Schellbach, the Nassau County Surrogate’s Court considered whether it could issue letters of administration where the decedent had spent her final years living in nursing facilities outside Nassau County.
Adding another person’s name to a bank or investment account does not always mean that person owns the money after the original owner’s death. Sometimes a joint account is created only so that a trusted relative can help pay bills or manage finances. In Matter of Cooper, the Nassau County Surrogate’s Court considered whether several accounts held in the names of a mother and daughter passed automatically to the daughter or remained part of the mother’s estate.
Felicia Cooper died in 2002, survived by her two children, Judith Gilman and Edward Cooper.
Executors are generally entitled to receive compensation for administering an estate under New York law. In most cases, that compensation is calculated according to a statutory formula based on the value of the probate estate. However, a will may provide that the executor is to serve without compensation. Matter of Goldberg presented the question of whether an executor could receive statutory commissions when the will expressly prohibited payment, but all of the beneficiaries agreed that the executor should nevertheless be compensated.
Bruce Goldberg died in 2007, leaving a will that was admitted to probate in Nassau County. The will named Steven Ostrer as executor. It also contained a provision stating that anyone serving as executor or trustee, including an attorney, would not be paid for performing those duties.
Estate administration depends on accurate information being provided to the Surrogate’s Court. When someone seeks appointment as an administrator, the petition must correctly identify the decedent’s heirs and other interested parties. If later evidence suggests that information in the petition was incorrect, questions may arise about whether the fiduciary’s appointment should be revoked. In Matter of Barasch, the Nassau County Surrogate’s Court addressed whether an administratrix could retain her appointment when another individual claimed to be the decedent’s surviving spouse and argued that the original petition contained a false statement regarding kinship.
Background facts
The proceeding arose after letters of administration had been issued in the estate of Herman Barasch. The petitioner claimed to be the decedent’s surviving spouse and sought to revoke the administratrix’s letters.
Sometimes more than one will is found after a person dies. Although the most recent valid will usually controls how the estate is distributed, there are situations where everyone involved agrees that an earlier will should be used instead. In Matter of Hayes, the Nassau County Surrogate’s Court considered whether an earlier will could be admitted to probate when all interested parties agreed and doing so would better carry out the decedent’s estate plan.
Arthur M. Hayes died in 2009, leaving behind his wife and their three sons. Because his wife suffered from dementia, the Surrogate’s Court appointed a guardian ad litem, an attorney whose job was to protect her interests during the probate proceeding. The decedent’s sons initially asked the court to admit a will that Mr. Hayes signed in 1990. Later, they changed course and asked the court to admit an earlier will that he had signed in 1982 instead.
Two subscribing witnesses testified to the due execution of decedent’s holographic will and to her testamentary capacity at the time of the execution; that the last page of the instrument, the only one they saw, bore no additional writings below their signatures.
The changes in the street numbers of the addresses of the legatees under items 13 and 14 are immaterial, as well as the interlineation of the amount of the legacy of item 13, as the amount thereof was increased by figures immediately above it and that in turn was interlined and the original amount reinstated with the initials of the decedent above it; the amount of item 16 was interlined, and a lesser sum substituted therefor immediately above it, which in turn was likewise interlined and the original amount restored. Equally immaterial is the phrase in item 15 which reads ‘in payment of money ($500) she gave my sister Mae and for which I thank her.’ Those interlineations and additions being fair upon their face and unexplained by any evidence to the contrary must be presumed to have been made before the execution of the will. Crossman v. Crossman, 95 N.Y. 145, 153.
The Court finds that the following legacies were originally written in the following sums: item 6–$1,000; item 17–$100; item 18–$100; item 19-$50; and item 20-$200, which sums were interlined and other sums substituted in their places; the interlineations were made either in pencil or ink and the substituted sums in ink, which ink interlineations and substitutions are in different color ink than the original legacies, wherefore it is found that such interlineations and substitutions of different sums were made subsequent to the execution of the will.
This is an appeal from the Supreme Court, Appellate Division, Second Department brought before the Court of Appeals of New York. First, an application was filed by LK, as executrix of the last will and testament of DFK, for the appointment of an appraiser to determine the value of the estate, and to fix the amount of transfer tax due thereon. Thereafter, the Surrogate of Kings County issued an order confirming the report of the appraiser. This was subsequently affirmed in an order by the Appellate Division of the Supreme Court for the Second Department. Consequently, the applicant appealed. The instant Court affirmed.
DFK died in the city of Brooklyn, leaving a last will and testament. On 10 September 1895, the will was admitted to probate. Only LK, the appellant, qualified as executrix thereof. Subsequently, she petitioned the surrogate of Kings County for the appointment of an appraiser to determine the value of the estate, and fix the amount of transfer tax due therefrom.
The will of the decedent, so far as material to the questions involved in this appeal, provides as follows: ‘I give, devise, and bequeath all my estate, real and personal, of whatsoever kind and wheresoever situated, unto my three sisters, MK, AK, and LK.’
The testatrix died January 10, 1914 leaving a will which was admitted to probate April 15, 1914. By paragraph ‘Fourth’ of her will she left her residuary estate in trust, and in substance provided that income be payable to a grandnephew for life, and upon his death that the trust be distributed to such of his children or their issue in such proportions as he might be will appoint, the power of appointment being limited, however, to his children or their issue who survived him, and in default of any such will or any such appointment, that the trust pass to the children of the grandnephew and the issue of any who had died per stirpes.
By paragraph ‘Fifth’ of the will testatrix provided that in case the grandnephew dies ‘intestate after me without lawful issue him surviving’ the trust shall be distributed to ‘my heirs at law and next of kin’. Such grandnephew died without issue on October 20, 1957, but whether or not he died intestate is questioned. The reason for the question is because he left a will under which he gave his entire estate to his mother and named her executrix. His mother, however, had predeceased him so that his will was wholly ineffective as a dispositive testamentary instrument as well as ineffective to name an executor. The will was, nevertheless, admitted to probate in another county, and letters of administration issued to one of his distributees who has since died.
Since the grandnephew had no children, the limited power of appointment could not have been and was not exercised and for the same reason the gift-over to children and issue of the grandnephew under paragraph ‘Fourth’ in default of appointment could not take effect. The result is that testatrix must be considered intestate as to the disposition of the trust after death of the income beneficiary unless some other provision of the will prevent such intestacy. If intestacy does result distribution must be to decedent’s heirs and next of kin determined as of the date of her death in 1914.
Plaintiff moves pursuant to CPLR § 3213 for an Order granting summary judgment in lieu of complaint for payment allegedly owed on a promissory note. “Defendants” or “the Estate”, as executors of the Estate of the decedent cross-move for summary judgment dismissing this proceeding pursuant to § 1810 of the Surrogate’s Court Procedure Act.
This case arises from a loan transaction between plaintiff and the decedent a real estate developer. Prior to his death, he was a 55% owner in Flatbush Extension, LLC (“Flatbush Extension”), which owned properties located at 67, 75, and 85 Flatbush Avenue in Brooklyn. On or about March 27, 2007, U.S. Bank and Flatbush Extension entered into a secured loan agreement (the “Loan Agreement”) pursuant to which the parties agreed that Flatbush Extension could borrow up to $50,000,000 in connection with the development of a luxury condominium project (“Flatbush Extension Project”).
In this proceeding the sister of the decedent individually and as administratrix with the will annexed of the estate of the deceased, for the allowance of a claim against the estate of deceased husband of which respondent is executor. Judgment of the Special Term allowing the claim in part, was affirmed in part and reversed in part by the Appellate Division, and claimant appeals.
In 1903 the husband and his wife, lived in Brooklyn. The wife owned a building at Classon Avenue, in a part of which she lived with her husband. On January 17, 1903, she made her will, and on March 27, 1903, she died. By her will she made her husband executor and gave her sister, $1,000. She then provided: ‘Fourth. I give and bequeath to my beloved husband all of the rest and remainder of my estate both real and personal to have and to hold the same to him, his heirs and assigns forever, with the understanding that at the decease of the said husband all of the estate which he shall derive under this will which shall then remain by him undisposed of he shall give and turn over to my sister.’
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