Estate Administration

Published on: July 15, 2015

Probate Court Discusses Recent Bequests of Stock

by Stephen Bilkis

This is the first New York decision to consider the effect of the recent AT & T divestiture on a bequest of AT & T stock. This is a proceeding brought by GB, co-administratrix c.t.a., for a construction of article “SECOND” of the testatrix’s last will and testament. The testatrix died on September 13, 1985 at the approximate age of 89. The last will and testament of the testatrix, dated February 6, 1982 and a codicil thereto, dated September 27, 1984, were admitted to probate by this court on December 2, 1986. Letters of administration c.t.a. were issued to the petitioner and LP, the respondent.

Under the aforementioned codicil, the testatrix deleted CD as a residuary legatee, she having died, and in her place named LP, the respondent who was a friend of the testatrix. This replacement was the only change made, and in all other respects, the will was approved, ratified and confirmed.

The value of the testatrix’s gross estate is approximately $600,000 comprised primarily of stocks, valued at approximately $350,000.00, a house and property, valued between $175,000 to $225,000, jewelry and miscellaneous items, valued at approximately $9,500.00 and two bank accounts, in the amount of approximately $15,000. The testatrix’s closest relatives are four first cousins, once removed, of which only one receives a bequest under the will.

Published on: July 12, 2015

Court Listens to Construction Proceeding Regarding Tax Returns

by Stephen Bilkis

The executors have instituted this construction proceeding, prior to the filing of Federal and New York estate tax returns, to determine the effect of a tax exoneration clause, paragraph second and request a reformation or interpretation of paragraph eleventh, which creates a pre 1969 residuary, multiple, split-income, charitable remainder trust so as to qualify it for a charitable deduction under U.S.Code, tit. 26, § 2055 as amended by the Tax Reform Act of 1969 (TRA).

The testator died on September 9, 1973, age 92, leaving a daughter, age 64, as his sole distributee, and a granddaughter and three great-grandsons. His will, executed on December 19, 1967 was admitted to probate and letters testamentary issued to petitioners on October 1, 1973.

Paragraph second of the will provides: I direct that all my funeral, administration expenses, just debts, and all estate and inheritance or succession taxes be paid as soon after my death as may be practicable. After several outright and in trust cash bequests to his daughter, granddaughter, great-grandsons and friends totalling $38,050, testator gave his residuary estate to his trustees in trust.

Published on: July 10, 2015

Probate Court Rules on Property Dispute

by Stephen Bilkis

This is an application by the Public Administrator of the County of Kings for a construction of testatrix’ will and other relief.

The testatrix died on December 27, 1919 leaving a will dated February 11, 1905 which was duly admitted to probate in this Court on June 18, 1920. Except for the printed portions of the form used, the instrument was entirely written by pen and ink. After providing for the payment of her lawful debts, testatrix devised all her property, real and personal, to her friend, Mr. BNFCRY, who was also named sole executrix with the further proviso as follows: ‘after BNFCRY Death the Balance what is left go to my Brothers or their heirs (naming them) To be Equally divided Between my Brothers or heirs of my Brothers’ (italics, capitalization and spelling as in original).

It appears that upon testatrix’s death Mr. BNFCRY took possession of real and personal property of testatrix and by conveyances, transfers, assignments, sales, and alienations, by said BNFCRY, individually and as executrix, the assets of the estate were disposed of among the several persons named in the petition herein. The question posed is whether by testatrix’ will BNFCRY took a fee or a life estate with or without power of alienation or disposition.

Published on: July 9, 2015

Petitioner Appeals a Surrogate Court Decree

by Stephen Bilkis

In a probate proceeding, the Petitioner appeals from so much of a decree of the Surrogate’s Court, Kings County dated July 1, 2004, as denied that branch of her cross motion which was for the issuance of preliminary letters testamentary to her for the estate of an immediate relative and granted those branches of the motion of the objectant, Mr. HP, which were to deny the issuance of preliminary letters testamentary to the petitioner for that estate, to disqualify the petitioner from service as executrix, and to issue letters of administration to Mr. HP.

In this Court now ordered that the decree is reversed insofar as appealed from and the matter is remitted to the Surrogate’s Court for an evidentiary hearing, and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the petitioner (appellant herein) from service as executrix, and to issue letters of administration to Mr. HP.

A testator or testatrix has the right to determine who is most suitable among those legally qualified to settle his or her affairs, and that selection is not to be lightly discarded. While the Surrogate may disqualify a person from receiving letters of administration where the friction between such person and a beneficiary interferes with the proper administration of the estate, mere friction or hostility between such person and a beneficiary is not sufficient grounds for removal.

Published on: July 7, 2015

Legatee Petitions to Compel Payment of a Legacy

by Stephen Bilkis

In a probate proceeding in which legatee Mr. E, petitioned to compel the payment of a legacy, nonparty Mr. LB appeals, by permission, from so much of an order of the Surrogate’s Court, dated December 4, 2008, as disqualified his law firm, SR, P.C., and all members and associates of that firm, from appearing as the petitioner’s attorney.

The facts are stated as follows:

The appellant, LB, was employed for many years as chief court attorney of the law department of the Surrogate’s Court, Kings County (hereinafter the Law Department). In February 2008, shortly after retiring from government service, LB joined SR, P.C. (hereinafter the Firm), a small law firm specializing in estate practice. Prior to LB’s association, the Firm was composed of only two other attorneys, Atty. SR himself and Atty. NA. In late November or early December 2006, before LB left his employment as chief court attorney, the Firm was retained to represent the petitioner in this Surrogate’s Court proceeding.

Published on: July 5, 2015

Probate Court Called Upon to Interpret Will

by Stephen Bilkis

Mr. LM, a resident of Burlington, Vt., died in August, 1870, leaving a last will dated October 3, 1868, and a codicil thereto executed October 28, 1868, which will and codicil were admitted to probate in the state of Vermont on September 16, 1870, and letters testamentary thereon issued to Mrs. ALM, his widow, who was named as executrix of the will.

The testator left him surviving his widow, ALM, three sons, WM, GM and CM, and one daughter, AM, who were his sole heirs at law and next of kin. GM, one of the sons, died June 29, 1900, leaving him surviving three children, one of whom is the plaintiff in this action; Mrs. ALM, the widow, died September 22, 1904, a little over four years after the death of her son GM, the father of the plaintiff. At the time of the testator’s death his children were under age and unmarried. The testator died seized of certain real estate in the states of New York, New Jersey, and Vermont. The plaintiff brought this action to partition lands in the county of Kings in this state, asserting she had an interest therein for the reason that under the terms of the will the interest of her father, GM, one of the remaindermen, was subject to be divested by his death during the lifetime of his mother, the life tenant, and upon the death of the latter, GM having predeceased her, plaintiff with her sisters who were defendants in this action became vested with the share of their father, GM, under the will. The trial justice decided in favor of plaintiff. The judgment entered upon that decision was reversed by the Appellate Division, and the complaint dismissed. Plaintiff and her sisters, defendants, appeal to this court.

The provisions of the will of Mr. LM material to be considered here are as follows:

Published on: July 4, 2015

Petitioner Files for Hearing on Final Trust Accounting

by Stephen Bilkis

This proceeding for settlement of a final trust accounting presents a question of construction occasioned by the bankruptcy of a charitable remainderman designated by the donee of a power of appointment.

The donor of the power, Mr. AK, died March 3, 1931 leaving a 1927 will which was probated in this court. His will provided that the net estate be divided into three portions and placed in trust, each part to furnish income to one of his three children. Upon the death of each child, the remainder interest in his or her trust was to be distributed by valid and absolute disposition by will of such child and in default of such exercise of the power, as a part of the estate of such child in accordance with the statutes of descent and distribution of the State of New York.

One of the children thus benefited was Dr. K. His will, which was duly admitted to probate in New York County following his death on March 2, 1940, directed that the trust fund established for him under his father’s will be placed in further trust to pay income to his wife, BK, and that upon her death, the corpus be equally divided between his niece, CV, “to her own sole use, benefit or be hoof, forever” and XYZ Hospital, or its successor or successors, “to its sole use, benefit and be hoof, absolutely and forever.”

Published on: July 2, 2015

Plaintiff Brings an Action for Leave to Compromise an Action

by Stephen Bilkis

In this proceeding for leave to compromise an action for wrongful death and conscious pain and suffering, the decedent was survived by his wife and two children all of whom presently reside in Ecuador. The decedent died as a result of injuries he sustained in a construction accident on June 7, 2000 in Bronx, New York. On October 13, 2000 this court issued limited letters to petitioner, Mr. JC, decedent’s uncle, to commence this action. The action was commenced on August 27, 2001. The Supreme Court, Bronx County, approved the compromise of the action for $790,000.00, allowed attorney disbursements of $5,897.70 and attorneys’ fees of $261,367.43 in an order dated March 20, 2006. This proceeding was commenced on December 5, 2006 to fix the allocation of the recovery, reimburse the funeral creditors and fix the distribution of the balance of the estate among the distributees who suffered a pecuniary loss.

On December 22, 2006, the petitioner served a citation in this matter by international certified mail, return receipt requested, upon decedent’s widow Mrs. GM. Petitioner also served Mrs. GM with the citation on that date as the mother of decedent’s infant daughters, PG and CG. Another citation was served that date on the infant, PG since she was over 14 years old on that date. Service was complete on the date of the mailing thereof. Citation was returnable January 10, 2007. No one appeared on that date. By order of this court dated February 1, 2007 a guardian ad litem was appointed for PG and CG. The guardian ad litem filed his report dated March 12, 2007.

In the guardian ad litem’s report he points out that PG turned eighteen on February 8, 2007 after he was appointed but before finalization of his report. The guardian ad litem reports that he has examined the file in this matter and concludes that the court lacks jurisdiction over PG presumably because of her eighteenth birthday and the fact that she is no longer under a disability. The guardian ad litem reports that he communicated this fact to petitioner’s attorney and suggested that he send a waiver and consent to Ecuador for PG’s signature and files it with the Court. The guardian ad litem made his recommendations with respect to the compromise subject to jurisdiction. No waiver and consent to the relief requested was ever filed by PG.

Published on: July 1, 2015

Court Reverses Order Disqualifying Executrix

by Stephen Bilkis

In a probate proceeding, the petitioner, Mrs. JP, appeals, as limited by her brief, from so much of an order of the Surrogate’s Court, Kings County, dated October 16, 2007, as, after a hearing, granted those branches of the motion of the objectant, Mr. EP III, which were to disqualify her from serving as executrix for the estate of a deceased relative and to reinstate letters of administration previously issued to the objectant.

The order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the motion of the objectant, Mr. EP III, which was to disqualify the petitioner is granted only to the extent of requiring the petitioner to retain new counsel for the estate and that branch of the motion is otherwise denied, that branch of the motion which was to reinstate letters of administration previously issued to the objectant is denied, and the matter is remitted to the Surrogate’s Court, Kings County, for further proceedings in accordance herewith.

The right of a testator or testatrix to designate, among those legally qualified, who will settle his or her affairs, is not to be lightly discarded, as explained in the case of Matter of Flood ( 236 N.Y. 408, 410, 140 N.E. 936). However, in the case of Matter of Mergenhagen (50 A.D.3d 1486 1488, 856 N.Y.S.2d 389) the Surrogate may disqualify an individual from receiving letters of administration where friction or hostility between such individual and a beneficiary or a co-administrator or co-administratrix, especially where such individual is at fault, interferes with the proper administration of the estate, and future cooperation is unlikely.

Published on: June 30, 2015

Court Discusses the Power of a Surrogate to Order a Bond

by Stephen Bilkis

The question turns upon the power of the surrogate to require an administrator’s bond in double the value of the personal estate in this state (New York) of Mr. JP, who at the time of his death was a resident of New Jersey, as a condition to the grant of ancillary administration. The personal estate of the decedent at the time of his death consisted of personal effects of the value of about $2,500 in New Jersey, and of stocks and securities of the value of about $40,000, deposited with a safe-deposit company in the city of Brooklyn.

On the 1st day of August, 1889, letters of administration were issued by the probate court of New Jersey to the widow of the decedent upon her petition setting forth that the personal estate of the decedent in that state did not exceed the sum of $2,500. The administratrix, on the granting of the letters, executed her bond with sureties in the penal sum of $5,000 to the surrogate of Monmouth county, N. J., where the decedent resided, conditioned to account for the personal estate of the intestate ‘in the state of New Jersey,’ which has or shall come to her hands. The petitioner did not disclose in her petition the fact that there was any other personal estate of the decedent beyond what was in his actual possession in that state at his decease. On the 1st day of April, 1890, the widow, who with her infant child had become a resident of Brooklyn, applied to the surrogate of Kings county, by petition, for ancillary letters of administration, the petition for the granting of the letters in New Jersey, and that the decedent left personal estate in Kings county of the value of about $40,000, and that one Mr. MP, of Brooklyn, is or claims to be a creditor of the decedent, and that there was no other person claiming to be a creditor known to the petitioner.

The surrogate thereupon issued a citation to creditors of the decedent, and on the hearing Mr. MP presented affidavits to the effect that the decedent was indebted to him in the sum of $7,371.73, with interest; that the decedent, at his death, was the owner of securities to the amount above mentioned, deposited in a safe-deposit company in Brooklyn; that the only security given by the administratrix was the bond of $5,000, and that she had no pecuniary responsibility apart from her interest as widow in the estate of the decedent. The surrogate made an order that ancillary letters be granted to the widow on condition that she should give a bond, with sureties, to be approved by the surrogate, in a penalty of double the value of that part of the personal estate of which the deceased died possessed, which at his death was within the county of Kings.