Estate Administration

Published on: May 31, 2017

Tenant Contends that Petitioner lacks Power to Prosecute Hold-Over Proceeding

by Stephen Bilkis

This is a holdover Landlord-Tenant summary proceeding. The tenant has moved to dismiss the petition pursuant to RPAPL 721 and 741 asserting that the petitioner, as a preliminary executrix, lacks the power to prosecute a holdover proceeding on behalf of the decedent’s estate.

This case was originally returnable on September 13, 2012. Attorneys for both sides appeared. Tenant’s attorney asked that the case be dismissed and, upon the Court’s reluctance to do so without a record, requested a motion schedule. The Court set the schedule to require that the motion be filed by September 20 with answering papers due September 23 and set October 4 as a control date. Despite this schedule, tenant made no request for any extension of time and made no motion until filing papers on September 28.

The Legislature created summary proceedings in 1820 in order to give landlords a “simple, expeditious and inexpensive means of regaining possession of a premises in cases where the tenant wrongfully held over without permission after the expiration of his term.” Expeditious disposition is so much of a priority that the statute prohibits adjournment of trials by not more than ten days, except by consent of all parties. RPAPL 745 (1). In keeping with this priority, the Court set a prompt, but viable, schedule for the proposed motion. Tenant failed to file the motion in a timely manner or seek consent to extend the schedule. Accordingly, the motion is denied as untimely.

Published on: May 24, 2017

Petitioner Requests Settlement of Accounts of Estate – Zimmerli’s Estate, In re, 220 N.Y.S.2d 123 (N.Y. Surr. Ct., 1961)

by Stephen Bilkis

The executor of the estates of two decedents asks the court to determine whether the proceeds from an insurance settlement should go to the decedents’ residuary estates or if it should go to beneficiary who was supposed to receive the property that was destroyed.

Husband and wife decedents F. Zimmerli and J. Zimmerli, presumably died simultaneously in a fire in their home on December 13, 1959. They left reciprocal wills which were duly admitted to probate on January 15, 1960. The wills state the real estate that was destroyed in the fire was to go to the Grace Episcopal Church of Lyons, New York. Caverly was named as the executor of the estates of both of the decedents. Caverly filed a petition with the Surrogate’s Court for the Judicial Settlement of his first intermediate account in the two estates. In the petition, Caverly asked the court to determine if the $16,813.20 insurance settlement for the fire loss to the real estate of the decedents should go to the decedents’ residuary estates or to the Grace Episcopal Church.

The language of the wills clearly shows the intention of the testators to specifically devise the destroyed real estate to the Grace Episcopal Church which is plain and obvious. However, the question is whether the rules related to how to handle proceeds of insurance policy means that the proceeds should go to the decedents’ residuary estates.

Published on: May 24, 2017

Court must determine if an executor acted inappropriately in managing estate assets – In re Account by Casaceli, 2010 NY Slip Op 33601 (N.Y. Surr. Ct., 2010)

by Stephen Bilkis

In this case the court had to determine if the executor had engaged in activities that amounted to breaches of his fiduciary duty. An executor is a fiduciary with respect to an estate. This means that the executor must make decisions with respect to estate assets that are only in the best interest of the estate. An executor is not allowed to engage in self-dealing. This means that the executor is not allowed to make transactions involving estate assets that are in his or her interest.

The decedent, E. Casaceli, died on May 1, 2004, leaving a will which was admitted to probate on July 7, 2004. The decedent was survived by his four children, Gr. Casaceli, Ga. Casaceli, S. Casaceli, P. Smith. Gr. Casaceli was appointed executor. The will provided that each of the children except for Ga. Casaceli receive cash bequests of $45,000.00. The residuary estate was to be divided equally among the four children.

After Gr. Casaceli filed a final accounting, Ga. Casaceli filed objections to the accounting asserting that Gr. Casaceli made a number of questionable or unaccounted for transactions related to estate assets. Ga. Casaceli asserted that Gr. Casaceli took a $10,000 advance payment of commissions without an order of the court. He seeks a return of that money, plus interest. Ga. Casaceli also asserts that Gr. Casaceli made distributions to his company in the amounts of $100,000 and $20,000. While he repaid the $20,000, he did not pay interest, and thus, engaged in self-dealing by making an interest-free loan to his company. Further, Ga. Casaceli objects to receiving $66,285.00 less of his distributive share that Gr. Casaceli instead paid to himself.

Published on: May 14, 2017

Court Appoints Temporary Administrators – Will of Duke, 632 N.Y.S.2d 532 (N.Y. App. Div., 1995)

by Stephen Bilkis

In this case the court had to determine whether it was appropriate to remove the co-executors of an estate and appoint temporary administrators. Typically, a testator will name in his or her last will and testament the person or persons that he or she wants to serve as his or her executor. However, before the nominated executor will have the legal authority to assume the duties of the position, the Surrogate’s Court must approve the nomination and issue letters testamentary. The court will only issue letters to someone who is qualified. Under Surrogate’s Court Procedure Act § 711, upon petition from an interested party, the Surrogate’s Court will suspend, modify, or revoke the authority of the executor if there is evidence that the executor was not qualified for the job, or is no longer qualified.

The decedent, Duke, left an estate valued at $1.2 billion. She names as co-executors her former butler, Laffety and U.S. Trust Company. The Surrogate’s Court was asked to remove the co-executors because they were unfit, because of violation of fiduciary duty, and because of conflicts of interest. The Surrogate’s Court did so and the former co-executors appealed. The Appellate Division affirmed the decision of the Surrogate’s Court.

The Appellate Division concluded that the Surrogate’s Court properly concluded that the Lafferty wasted estate assets by paying himself a significant salary and lavish benefits, even though he was earning a substantial commission for serving as co-executor. There was evidence that he was living at the decedent’s estate and using the property as if it was his own. The court concluded that these activities by Lafferty amounted to self-dealing.

Published on: May 14, 2017

Court Discusses Sufficiency of Evidence

by Stephen Bilkis

This is an estate case where Defendant moves this court to inspect the Grand Jury minutes and to dismiss various counts of an Indictment on several grounds including legal insufficiency. Defendant also claims that certain counts are duplicitous, provide insufficient notice, and are too vague. Defendant moves to dismiss three counts of Criminal Contempt in the Second Degree on the grounds that he had not been served with any order of protection in the days of the alleged violations.

The Defendant was arrested on July 21, 1997 and charged in a felony complaint with several counts each of Criminal Contempt in the Second Degree, Aggravated Harassment in the Second Degree, Harassment in the Second Degree and Attempted Coercion in the Second Degree. At the time of his arraignment on the felony complaint, the defendant did not file notice of his intention to testify before the Grand Jury. Defendant was subsequently indicted by the Grand Jury for Grand Larceny in the Second Degree, Grand Larceny in the Fourth Degree, Aggravated Harassment (24 counts), Criminal Contempt in the Second Degree (3 counts), Harassment in the Second Degree (2 counts), Attempted Coercion in the First Degree, Attempted Coercion in the Second Degree, and Menacing in the Second Degree.

According to the Grand Jury testimony, these charges arose out of numerous incidents occurring between August 1996 and July 1997. Beginning in August 1996, the defendant, 44, was living with his 77-year-old mother, the complainant in this case. He lived with her until June 26, 1997. Defendant’s mother gave the defendant an allowance on a weekly basis while he was living with her. This allowance was given reluctantly, and allegedly coerced through threats and physical intimidation by the defendant.

Published on: April 30, 2017

Petitioner Seeks to Reform and Construe Will – In the Matter of Rappaport, 21 Misc.3d 919 (N.Y. Surr. Ct., 2008)

by Stephen Bilkis

In this case the Surrogate’s Court was asked to reform and construe a will. Reformation of a will involves changing the language of a will to cure a mistake so that the will is consistent with the testator’s intent.

Decedent Rappaport died on August 31, 2006. She was survived by four adult children, including petitioner I. Rappaport, and a disabled daughter, S. Rappaport. The will was admitted to probate and all of decedent’s children except S. Rappaport, were appointed as coexecutors. J. Rappaport died in December 2007. The court has appointed Bartol as guardian ad litem to represent S. Rappaport’s interests.

The will included a provision that created a trust for the benefit of S. Rappaport. The decedent bequeathed assets to the trust and stated that trustees are named. Income and principal from the trust fund were to be paid to S. Rappaport in installments as needed for S. Rappaport’s health, support, and maintenance. Upon S. Rappaport’s death, the principal from the trust was to be paid to the other children.

Published on: April 16, 2017

Court Hears Proceeding to Construe a Will

by Stephen Bilkis

This is a proceeding to construe the last will and testament of a testatrix who died on April 18, 2010, survived by five children. Her will, dated September 1, 2006 (the “Will”), was admitted to probate on July 2, 2010 and letters testamentary issued to petitioner, one of her children. Article SECOND of the Will established a credit shelter trust for her husband, with remainder to her children. Article THREE left the “rest, residue and remainder” of her estate to her husband outright. Her husband predeceased her and she provided in Article FOURTH that if her husband predeceased her, she left “all the rest, residue and remainder of my estate, real, personal and mixed and wheresoever situated”

The estate is sufficiently large to generate a New York State estate tax. Article FIFTH of the will provides that “All estate, inheritance, transfer, succession or other similar taxes shall be payable out of the residuary of my estate”. The executor asks that the Court construe the gift to real property to the devisee in Article FOURTH(A) as a preresiduary gift and the remainder clause of Article FOURTH(B) as the residuary estate. The executor brings this construction proceeding, since he claims that not all of the residuary beneficiaries agree with his interpretation.

In the Will in question, Article FIFTH directs that the payment of estate taxes be paid from the residuary estate. The problem is that the Will contains two residuary clauses. The first is found in the preamble to Article FOURTH, which disposes of the “all rest, residue and remainder of my estate, real , personal and mixed and wheresoever situated” of the testator’s estate if the testator’s husband predeceased the testator. The second is Article FOURTH(B), which purports to dispose of the “rest and remainder” of the testator’s estate after the devise of real property in Article FOURTH(A).

Published on: March 5, 2017

Objectant in Case Alleges Undue Influence in Will Case – Bach, Matter of, 519 N.Y.S.2d 670 (N.Y. App. Div., 1987)

by Stephen Bilkis

Decedent M. Bach executed a will in 1977 that named as beneficiaries her two sisters who were living at the time, and the surviving son of a third sister, Haber. The will also provided that if either of the sisters predeceased her, then her share would go to Metzger, the daughter of one of those sisters.

In 1977, Bach fractured her hip bone. Haber, who was a college professor, quit his job to attend to Bach’s affairs full time. She executed a power of attorney naming Haber as his agent and transfer control of her financial accounts to joint accounts with him. Haber also assisted Bach in finding nursing homes in which lived until her death in 1984.

In 1981 Haber drafted a new will that named him as the executor of the estate and as Bach’s sole heir. Bach’s sisters had passed away by that time, but Metzger had not, and she was not named in the new will. If the will was not changed, then Metzger would be entitled to the deceased sisters share of Bach’s estate.

Published on: August 9, 2016

Objectant Moves for a Trial by Jury

by Stephen Bilkis

In this contested probate proceeding, objectant pro se, moves for an order granting her a trial by jury. The proceeding was commenced by petitioner on December 15, 2005. The objectant filed objections to probate on August 3, 2006.The decedent died testate on October 24, 2005. Petitioner is decedent’s sister; she is a distributee, as well as the nominated executor and residuary beneficiary under the propounded instrument dated May 11, 1974. The objectant is a distributee; she is a daughter of one of the decedent’s pre-deceased brothers. She does not receive anything under the propounded instrument.

The objectant asserts that she verbally requested a jury trial at conferences before two different court attorney-referees and was “told that the conference would be first.” She contends that she was not informed that a jury demand had to be in writing, although she also states her belief that she “signed for this.” Had Katherine advised the court that she wanted a jury trial, she would have been advised to file a jury demand.

In her moving papers, the objectant again asserts that one of the court attorney-referees is “in harmony” with petitioner’s attorney. This assertion was the subject of a prior decision (dec no. 666, October 30, 2007) of the court, which denied the objectant’s motion for disqualification of the court attorney-referee because the objectant did not assert any of the statutory disqualifications set forth in section 14 of the Judiciary Law to support her motion (see Schreiber-Cross v. State of New York, 31 AD3d 425 [2nd Dept 2006] and Moers v. Gilbert, 175 Misc 733 [Sup Ct, New York County 1941][court referee is held to the same standards as a Judge] and because the record did not reveal any other basis on which the court might be inclined to assign a different court attorney to the case.

Published on: July 28, 2016

Court Discusses Doctrine of Incorporation by Reference

by Stephen Bilkis

The petition presents an issue under the doctrine of ‘incorporation by reference’ as applied to wills. The petitioner a sister of the testator, presents an unwitnessed holographic instrument executed January 9, 1968 (‘January instrument’) and also a duly executed instrument (which has been proved as a will) dated February 20, 1968 (‘February will’).

The January holographic instrument necessarily must be denied probate. It was executed in New York; the decedent was not a member of the armed forces; it is unwitnessed. (EPTL 3–2.2, 3–2.1.) As already noted the February will has been duly proved. The January instrument disposes ‘of my entire personal estate’ to the petitioner.

The February will provides: ‘FIRST: I ratify and confirm all wills heretofore made by me at any time in every respect, except insofar as the same is inconsistent with the provisions of this codicil. SECOND: I direct that any monies realized from any and all Stocks and Bonds in my name be divided equally between: (listing three brothers and his sister petitioner herein).’