Nassau

Published on: May 25, 2014

Administrator Moves to Dismiss Petition by Two Creditors

by Stephen Bilkis

In this miscellaneous proceeding, the respondent, administrator de bonis non, moves to dismiss the petition by two alleged creditors for revocation of his letters pursuant to CPLR 3211 (a) (2) and (3).

A New York Probate Lawyer said that the decedent died in April 1939, intestate. The decedent was the writer of some classic songs. He was survived by his wife and his father. Pursuant to the law of intestacy applicable at the time of the decedent’s death, the survivors were the decedent’s only distributees. In May 1939, the wife was appointed administrator of the decedent’s estate. She died in November 1973, a resident of New York County. She left a last will and testament which nominated executors. The first executor died in January 1983 leaving a will. Letters testamentary in his estate issued to his co-executor.

A New York Will Lawyer said the respondent, who alleges that he is a grandnephew of the decedent, petitioned for letters of administration de bonis non with respect to the decedent’s estate by petition dated September 21, 2009. The petition filed by him in the administration proceeding recites that the decedent had eight brothers and sisters who were deceased and that five nephews/nieces and seventeen great-nephews/great-nieces “were surviving.” Nicholas’ petition for letters of administration de bonis non was supported by waivers and consents of twenty-one of the distributees identified and citation issued to one alleged distributee who did not appear on the return date. According to his petition, the value of the assets in need of administration was $9,000.00.

Published on: May 21, 2014

Public Administrator Asks Court To Disallow Attorneys Fees

by Stephen Bilkis

A New York Probate Lawyer said a man died intestate, a resident and domiciliary of Nassau County. Letters of estate administration were issued to the Public Administrator. The account filed by the Public Administrator shows total charges of $614,863.33, total credits of $72,849.32 and a balance on hand of $595,994.34. Objections to the account were filed by people who claim to be distributees of the decedent. They objected to the disallowance of their claims against the decedent’s estate and the Public Administrator’s request to distribute the net estate to the New York State Comptroller for the benefit of the decedent’s unknown distributees, and they reserved their right to object to the Public Administrator’s legal fees, but ultimately did not object to them. Thereafter, the Public Administrator filed an affidavit bringing the account current. It shows total charges of $677,462.32 and total credits and cash on hand of $677,462.32.

The record reflects that a diligent and exhaustive search was made to discover evidence of other possible distributees. Since more than three years have elapsed since the decedent’s death, the known heirs are entitled to the benefit of the presumption of Surrogate’s Court Procedure Act (SCPA). Therefore, based upon the evidence before the court, it is held that the decedent is survived by five distributees: one paternal cousin and four maternal cousins. Pursuant to Estates Powers and Trusts Law (EPTL), one-half of the decedent’s property passes to the issue of paternal grandparents, by representation, and one-half to the issue of maternal grandparents, by representation.

A New York Will Lawyer said that durning to the accounting, the Public Administrator’s reimbursement in the amount of $7,469.00 for the decedent’s funeral is approved as a reasonable and necessary estate administration expense. The Public Administrator has asked for the court’s approval for disallowing the claims for payment of legal fees; for cleaning services at the decedent’s residence; for cleaning services at the decedent’s residence; and for cleaning services at the decedent’s residence. The basis of the Public Administrator’s rejection of the claims is that these individuals were not authorized by the Public Administrator to provide cleaning services to the estate. These four claims have now been withdrawn, making the request for approval of their disallowance moot. The claim of the oil company is disallowed for failure to submit documentary evidence sufficient to substantiate such claim and for failure to complete and return the affidavit of claim required by SCPA.

Published on: May 18, 2014

Court Discusses Jurisdiction Issues

by Stephen Bilkis

A New York Probate Lawyer this probate proceeding, objections were filed and a jury demanded by the respondents. A motion is made by them to dismiss the petition before any trial on the merits upon the ground that the decedent was not a (domiciliary) resident of Nassau County at her death. They request that the proceeding be forwarded to New York County as the proper county of residence and also for the convenience of witnesses.

In support of the motion, there have been filed affidavits of respondents’ attorney and of respondent man along with copies of affidavits and exhibits which had been previously submitted to the court in connection with an application to revoke letters testamentary which had been issued to the proponent here on the estate of the decedent’s husband, who died on May 26, 1975.

A New York Will Lawyer in opposition to the motion various other facts are asserted to sustain proponent’s claim that Nassau County was the domiciliary residence of decedent and both attorneys have submitted memoranda in support of their respective positions. The court has examined them and will discuss below the various facts alleged by both sides.

Published on: May 11, 2014

Petitioner Moves for Formal Accounting in Estate Litigation

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, died a resident of Nassau County on December 28, 2010, survived by his sister, the petitioner; and by his brothers respondent and movant herein, and. The decedent’s last will and testament dated May 23, 2000 was offered for probate by the petitioner, who is named as the sole beneficiary of the decedent’s residuary estate, as well as the executrix in the propounded instrument. Preliminary letters testamentary issued to the petitioner by order of this court on January 13, 2011. Respondent and the movant have filed objections to probate of the will.

A New York Will Lawyer said that, the disputes presently before the court all relate to a supermarket, which was run by the decedent and his brother. The supermarket, located at 601 Old Country Road in Plainview, New York, is comprised of three separate closely held corporations: (1) 601 Corp., which operates the grocery and dry goods business within the supermarket, and was owned by decedent and his brother as equal 50% shareholders; (2) Captain Joe’s Fish Corp. (Captain Joe’s), which sells fish and seafood at John’s Farms, and was owned by decedent and his brother as equal 50% shareholders; and (3) BNC, which operates a meat market within John’s Farms, which was owned wholly by decedent.

A Nassau County Probate Lawyers said that, the decedent’s sister commenced a SCPA 2103 discovery proceeding against respondents and the CPA as the accountant for John’s Farms, in order to, inter alia, prevent the decedent’s brother interference with the operation of BNC and to compel him to turn over the cash receipts of BNC from the date of the decedent’s death to the present; to prevent him interference with the petitioner’s right to take part in the management of Captain Joe’s and 601 Corp. and to gain full access to the records of those corporations; to compel the brother to make available to the petitioner the books and records of the decedent, BNC, 601 Corp. and Captain Joe’s; and to compel the brother to turn over the computer and other items he took from the decedent’s home.

Published on: May 3, 2014

Court is Asked to Determine Attorneys Fees

by Stephen Bilkis

A New York Probate Lawyer said that, in this proceeding, the court is asked to determine the attorneys’ fees due the former counsel for the executors of the decedent’s estate. The decedent died a resident of Nassau County on January 30, 2011. A last will and testament, dated December 28, 1995, was admitted to probate by this court by decree dated May 11, 2011. Letters testamentary issued to co-executors of the decedent’s estate. Petitioner law firm had represented both of the co-executors in the probate proceeding, but due to a conflict of interest sought to withdraw as counsel.

A New York Will Lawyer said that, the petitioner submitted an affidavit of legal services, along with detailed time records which itemize the legal services provided and the disbursements made. The billing statements cover three time periods, namely: January 28, 2011 through August 16, 2011, as reflected in Invoice No. 16444, for the amount of $17,490.00 for services rendered, plus $1,528.58 for disbursements, less a credit for $1,280.00 paid; September 9, 2011 through November 22, 2011, as reflected in Invoice No. 16457, for the amount of $2,595.00; and December 5, 2011 through July 10, 2012, as reflected in Invoice No. 16543, for the amount of $11,267.50 The total fee requested by counsel is “a sum not less than $31,000.00,” plus disbursements of $1,582.58, of which $1,280.00 was already paid.

A Nassau Estate Litigation Lawyer said that, the legal services performed can be subdivided as follows: January 28, 2011- March 1, 2011: During this period, counsel spoke by telephone multiple times with a nominated co-executor, and with her daughter, , and he met with her daughter once. Counsel billed $1,295.00 for this work. March 2, 2011 – March 27, 2011: Counsel began working on the probate proceeding, including the family tree affidavit. According to the billing records, counsel also worked on researching and redeeming decedent’s savings bonds, a non-probate asset, as well as bonds belonging to the co-executor and her daughter. The charges for this time period come to $4,537.50. March 28, 2011 – July 17, 2011: On March 28, 2011, counsel sent a retainer letter to confirm that he had been engaged to represent them as co-executors of decedent’s estate and to assist in the transfer of non-testamentary assets. Counsel then continued working on the estate administration, including the renunciation of the other as co-executor and the appointment of the executor in her place. The services rendered included dealing with decedent’s medical bills and counsel’s interaction with banks. Beginning on June 28, 2011, counsel had an associate assist him with rendering legal services to the estate. Documents submitted by counsel indicate that on July 12, 2011, the day after his initial meeting with the co-executor, counsel noted for the first time that decedent’s bank records reflected pre-death transfers by check to the daughter as decedent’s attorney-in-fact. Counsel states that he discussed these checks with the co-executor and explained that they were irregular and might constitute self-dealing by the daughter. Counsel and co-executor agreed to review an additional year of statements. The billable time for this period totaled $7,535.00. July 18, 2011 – November 3, 2011: Counsel’s time records reflect that on July 18, 2011, he began to research the possibility that he had an ethical conflict in jointly representing the co-executors, based upon the exercise of a power of attorney granted by the decedent to which power had apparently been exercised to make transfers to the daughter and the co-executor. The records reflect that counsel continued to represent the co-executors while researching and discussing the issue with his clients. A list summarizing all of the transfers made by them was prepared and sent to both co-executors. Counsel reports that co-executor then advised counsel that he did not want to pursues a claim in connection with these transfers. On September 16, 2011, counsel wrote to the co-executor seeking written confirmation from him that he intended to waive any claim regarding the transfers made by the daughter. The Co-executor did not sign the letter as requested. Instead, he consulted with another law firm, which ultimately was substituted as the co-executor’s new counsel in this matter. The total amount billed for this time period, exclusive of disbursements, was $6,077.50.

Published on: May 2, 2014

Court is Asked to Dispense with Filing of a Bond

by Stephen Bilkis

A New York Probate Lawyer said that, in this uncontested probate proceeding, the court is asked to dispense with the filing of a bond by the nominated trustee due to a purported scrivener’s error in the will. The decedent died a resident of Nassau County on February 4, 2007. A will dated September 20, 2006 has been offered for probate by the nominated executor. The executor is the decedent’s husband. The decedent was also survived by two adult children, an adult grandchild and two minor grandchildren.

A New York Will Lawyer said that, Article FOURTH of the will creates a trust to be funded with the “exemption amount.” The trust terminates upon the executor’s death, and he has a limited testamentary power of appointment over the trust principal. If or to the extent that he fails to exercise the limited power of appointment, the remaining trust principal is payable to his 1993 Insurance Trust. The residuary estate is payable to him. The will nominates the husband as trustee and the decedent’s children as successor trustees.

Nassau County Probate Lawyers said the issue in this case is whether the executor husband can be dispense with the filing of a bond by the nominated trustee due to a purported scrivener’s error in the will.

Published on: April 7, 2014

Court Decides Case Where Will is Lost

by Stephen Bilkis

A New York Probate Lawyer said by this proceeding, the petitioner, the nominated fiduciary, seeks to admit to probate a copy of the last will of decedent, the original not being found after the death of the testator. The decedent’s will was executed in 2009.

A New York Will Lawyer said that the decedent was survived by her husband and three children, two of whom are minors. A guardian ad litem was appointed for the minor children and has filed a report in which he recommends that the lost will be admitted to probate and that the court approve a stipulation of settlement providing the same. The decedent’s will provides for the distribution of her assets to her children. The will provides in Article Fifth (b) that the decedent leaves no portion of the residue to her husband, not because of any lack of affection for him, but because he is the sole beneficiary of a life insurance policy in the face amount of $1,000,000 and he will also become the sole owner of their home as well as a condominium in Florida. The decedent’s husband filed objections to the lost will being admitted to probate which were later withdrawn by the proposed stipulation of settlement.

In order to have the copy of the will probated, petitioner relies on the provisions of SCPA 1407 which provide: A lost or destroyed will may be admitted to probate only if: 1. It is established that the will has not been revoked, and 2. Execution of the will is proved in the manner required for the probate of an existing will, and 3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.

Published on: March 29, 2014

Petitioner Requests Letters Testamentary

by Stephen Bilkis

A New York Probate Lawyer said this probate proceeding, two of the three preliminary executors move for an order disqualifying their former attorneys from representing the objectants; the motion is opposed.

A New York Will Lawyer said that the decedent died in November 2010, survived by a spouse and two adult children. The decedent executed a will in 1990, a first codicil in 2003, and a second codicil in 2010. In the first codicil, the decedent appointed his son, his attorney, and his accountant, as co-executors and co-trustees. Objections have been filed by decedent’s children only as to the second codicil, the only dispositive provision of which leaves the decedent’s residence in Sands Point, New York to the decedent’s spouse; the will had merely provided her with the right to occupy the decedent’s residence for up to eighteen months after the decedent’s death.

Nassau County Probate Lawyers said the lawyer and the accountant filed a petition for the probate of all three instruments and for the issuance of letters testamentary and preliminary letters testamentary to the two of them, to the exclusion of the son. As indicated above, the son and his sister objected to the probate of the second codicil, and also to the prayer for the issuance of preliminary letters solely to the lawyer and accountant. The dispute regarding the preliminary letters was resolved and preliminary letters testamentary issued to all three nominated executors in February 2011.

Published on: March 26, 2014

Court Rules on Estate Case Regarding Jurisdictional Issues

by Stephen Bilkis

A New York Probate Lawyer said the petition for letters of estate administration is opposed by the deceased father’s son and daughter who have filed with their objections papers certifying that their father’s will was probated in the Superior Court for the District of Montreal, Quebec, on December 14, 1962. The certificate indicates the will was probated without notice to the heirs and legatees of the deceased.

The petition for letters alleges that the father died intestate a resident of Nassau County. The objectant son and daughter challenge the allegation of residence in this county, and further contend that letters of estate administration may not be granted when the deceased left a will.

A New York Will Lawyer said that assuming the deceased father to be a non-resident and a will has been admitted to probate or established in another state or country, jurisdiction over original probate or administration in this state has been refused. Under such circumstances the Surrogate Court is limited to the issuance of ancillary letters upon proper application, accompanied by a copy of the will and of the foreign letters properly authenticated.

Published on: March 16, 2014

Court Discusses Reasonable Attorney’s Fees in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that, submitted for decision in this accounting proceeding are the issues of (i) attorney’s fees; (ii) accountant’s fees; and (iii) commissions. The decedent, died on February 26, 1996, a resident of Nassau County, leaving a will dated March 9, 1984. The will was admitted to probate by decree dated May 18, 2004, and letters of administration issued to the Public Administrator on the same date. The summary statement shows charges to the accounting party of $289,650.33. This is the Public Administrator’s first and final accounting. The decedent’s will, after the payment of a $2,000.00 bequest to Mercy Hospital, Rockville Centre, New York, directs that the decedent’s residuary estate be paid to the Diabetes Association of New York, Inc. The Attorney General of the State of New York has appeared in this proceeding.

The issue in this case is whether the accounting matters in this probate proceeding should be granted.

A New York Will Lawyer said with respect to the issue of attorneys’ fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.