Articles Posted in Estate Administration

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In this probate proceeding the court had to address an issue related to the construction of terms in the will related to the restriction on the disposition of real estate.

Decedent M. Bonanno died in 2002, leaving a last will and testament dated August 1, 1983. The Surrogate’s Court admitted the will to probate. The will provided that specific real estate that she owned in Queens go to her 4 children, and that it not be sold while her children remained single, and while any of them still lived in the property. It also stated that when the property was sold, the proceeds would be divided equally among her four children. Two of the decedent’s children petitioned the court for a construction of the provisions of the will related to the real property. They sought an order stating that each of 4 sibling owns a ¼ share of the property in fee simple without restriction. After filing the petition, the petitioners also filed a motion of summary judgment on the petition. The Surrogate’s Court denied the motion and the petitioners appealed.

In a summary judgment motion, the moving party has the burden of making a prima facie showing that based on the undisputed material facts, he or she is entitled to judgment as a matter of law. If the moving party is able to do this, then the burden shifts to the opposing party to rebut the moving party’s motion and show that there are material facts in dispute.

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In this case the New York Surrogate’s Court considered a request to modify a testamentary trust to change the name of a beneficiary, based on the doctrine of “cy pres.” The cy-près doctrine allows the court to amend the terms of a charitable trust in order to keep the gift from failing. The doctrine requires that the amendment be consistent with the donor’s original intent.

The decedent died on April 13, 1968. Her will was admitted to probate on January 16, 1969. The will includes provisions naming various charities as beneficiaries, including: The Carmelite Sisters of the Aged and Infirmed, The Catholic Foreign Missionary Society of America (Maryknoll Fathers), The Nursing Sisters of the Sick Poor, The Monastery of Our Lady of Mt. Carmel, and The Confraternity of the Precious Blood. Each of these organization received a specific bequest of $5,000. The will also left the entire residuary estate to a trust for the benefit of Catholic Child Care Society and provides for the invasion of the principal of the trust annually until the trust and corpus is exhausted. The trust has a remaining principal of approximately $90,000.

The petitioner, Catholic Child Care Society of the Diocese of Brooklyn, requests that the court modify the decedent’s will to designate St. John’s Residence for Boys as a beneficiary of the testamentary trust established under the decedent’s will in lieu of Catholic Child Care Society pursuant to EPTL § 8-1.1. At the time the will was admitted to probate, Catholic Child Care Society operated two programs: St. John’s Residence for Boys and St. Joseph’s Children’s Services. In 1995 St. John’s Residence for Boys incorporated separately but continued to work with Catholic Child Care Society. In 2001, the petitioner ceased doing business. The children for whom petitioner had been providing services were transferred to other authorized agencies throughout New York City. As a result, the petitioner has filed this application pursuant to EPTL§ 8-1.1 to modify the trust. Section 8-1.1 is the statutory codification of the common law doctrine of cy pres. It gives authority to the Surrogate’s Court to direct a disposition to be applied in such manner that will most effectively accompany its general purposes.

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This case involves an appeal to a Surrogate’s Court decision related to the accounting filed by an executor. One of the responsibilities of an executor is to keep accurate records of all of the money coming into an estate and all money distributed from the estate. The executor must submit a final accounting to the Surrogate’s Court which will review the records and ensure that the executor handled the estate assets properly. An interested party, such as a beneficiary, has the right to object to an accounting.

M. Schneider is the executor of the estate of his father, S. Schneider. According to the terms of S. Schneider’s will, his estate went to his two children, his son, M. Schneider and his daughter, J. Kotcher. M. Schneider was to receive corporate stock, valued at approximately $144,000. The remaining estate, valued at approximately $673,000, was to be equally divided between M. Schneider and J. Kotcher.

Kotcher objected to probate. However, Kotcher ultimately withdrew her objections after M. Schneider agreed to pay her $75,000. M. Schneider then filed an amended final account, and Kotcher objected to it because it credited the estate with paying the $75,000 settlement. By crediting the estate with paying her the $75,000, her pro rata share of the estate taxes increased. Kotcher asserted that the $75,000 was paid by M. Schneider personally, and not the estate. The Surrogate’s Court disagreed, concluding that the stipulation of settlement required the $75,000 to be paid by the estate and not Marvin Schneider personally. Kotcher appealed. The appellant division found in favor of Kotcher.

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In this case the court is asked to enforce an agreement made by spouses in a joint will that required the surviving spouse to leave any property received under the will to the couple’s children.

This case involves a dispute over the estate of R. Wagner and T. Wagner. R. Wagner and T. Wagner were married. T. Wagner died and R. Wagner married A. Wagner. Then R. Wagner died, leaving A. Wagner as the surviving spouse. R. Wagner left a will that named Runstorf as the executor. This case is an action brought by the children of R. Wagner and T. Wagner for declaratory judgement related to certain property that was originally owned by R. Wagner and T. Wagner. The action named A. Wagner and Runstorf as defendants. The Supreme Court dismissed the complaint. The plaintiffs appealed.

In the complaint, the plaintiff asked the court to impress a constructive trust upon real property located in Staten Island, to void A. Wagner’s right of election, to impress a constructive trust upon the proceeds of A. Raymond’s pension plan, and to impress a constructive trust on the funds in savings and checking accounts that were owned by T. Wagner and A. Wagner jointly.

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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.

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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.

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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.

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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.

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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.

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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.

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