Estate Administration

Published on: December 22, 2013

Petitioner Seeking Damages from Probate Attorney

by Stephen Bilkis

A New York Probate Lawyer said that, this is a motion to dismiss an amended petition filed in a pending accounting proceeding. The amended petition states two causes of action seeking damages in the amount of $20,000 (less disbursements of up to $3,000) from the movant arising out of his allegedly negligent performance of his duties as an attorney in connection with the settlement of the contested probate of this decedent’s will. There are four petitioners: two are hospitals and were the movant’s clients in the probate contest; the other two petitioners were parties to the settlement as persons interested in the estate but were not the movant’s clients. They are the decedent’s separated wife and the trustee of a pre-residuary trust. The question raised by this motion is the scope of the movant’s liability for negligence to persons with whom he had no privity of contract.

A New York Will Lawyer said the background facts here begin with a 1967 separation agreement between the decedent and his wife (who is, as indicated, one of the four petitioners) in which he undertook to execute a will creating a $325,000 trust to pay her $12,000 a year from income or, if income was insufficient therefor, from principal. After her death the remaining principal and any accumulated income was to be paid to the two hospitals who are co-petitioners. The trustee of this trust is the fourth petitioner.

A New York Will Contest Lawyer said that, in 1968, the decedent executed a will creating a pre-residuary trust which complied with the separation agreement. The residue of his estate was bequeathed to the same two hospitals. In 1972, he executed a new will which contained the same pre-residuary trust, but the residue under this will was bequeathed to his nephew. At this time he also created a substantial inter vivos trust which significantly reduced his testamentary estate. The beneficiary of the inter vivos trust was the said nephew.

Published on: June 28, 2013

Court Decides Will Contest Involving Minor Children

by Stephen Bilkis

A New York Probate Lawyer said that on 11 April 2007, the decedent died leaving a will dated 7 August 1997. She was survived by her two sons, A and B, and a granddaughter, CC, issue of a predeceased daughter, C.

Under the decedent’s will, her estate was to be divided equally between her two sons, and the issue of her predeceased daughter. It was provided in the will that, where any part of the estate vests in a minor, the executor named is authorized and empowered in his absolute discretion, to hold the property so vested in such minor and to invest and reinvest the same, collect the income therefrom, and during the minority of such minor, to apply so much of the net income therefrom or of the principal thereof for the care, support, maintenance or education of such minor as the executor deems it necessary and to accumulate any such income not so paid, if any, and to invest and reinvest same until said minor shall attain the age of 21 years, at which time the accumulated income and unexpended principal shall be paid over to him; the authority conferred upon the executor must be construed as a power only and cannot operate to suspend or prevent absolute vesting of any property in such minor; with respect to any such property which shall vest in absolute ownership in a minor or minors but which shall be held by the executor as authorized, the executor is entitled to such commissions at the rates and manner payable to a testamentary trustee with the same power and authority. The decedent nominated her three children as co-executors and directed that they serve without bond. The estate was valued at approximately $345,000.

Consequently, a probate proceeding was instituted. At that time, CC was a minor and a guardian ad litem was appointed to represent her. The guardian ad litem had no objections to the will being admitted to probate. However, the guardian ad litem recommended that the infant’s share of the estate be placed in trust with the Public Administrator to act as Trustee.

Published on: June 27, 2013

Court Hears Venue Challenge in Will Contest Case

by Stephen Bilkis

On 16 July 1983, a decedent died leaving a will. He was survived by several children, one of whom receives less than his distributive share in the estate under the propounded will.

A New York Probate Lawyer said that on 8 September 1983, the probate petition, a will contest proceeding, was filed and on 9 November 1983, jurisdiction was complete. On 14 December 1983, preliminary letters were issued to the nominated fiduciary on consent. On 3 January 1984, objections were filed by the partially disinherited son. On 6 February 1984, examinations before trial were complete. Approximately 10 months after the filing of the objections, the partially disinherited son moves to dismiss the petition on the ground that the decedent was not domiciled in Nassau County but in Bronx County.

As provided for under Article 2 of the Surrogate’s Court Procedure Act, jurisdiction over domiciliaries of the State of New York rests solely with the county where the decedent died domiciled.

Published on: May 31, 2013

Petitioners Look for Power to Evict Tenants from Property

by Stephen Bilkis

The Facts of the Case:

On 30 December 2006, the decedent died a resident of Nassau County leaving a last will and testament dated 13 July 2006. On 19 March 2007, the will was admitted to probate and letters issued to A and B as co-executors and co-trustees. After making some specific bequests, the decedent left her residuary estate to her four daughters, A, B, C, and D, in equal shares; and placed C’s share in a Supplemental Needs Trust under her name created pursuant to Article Fourth of the will. Under the will, the trustees were given discretion in distributing income and principal to C; that at C’s death, the remainder of the trust, if any, will pass to C’s son, CC; and D is the named successor fiduciary. The estate contains approximately $125,000.00 in personal property and three homes, which are valued in the aggregate at $1,285,000.00.

Thereafter, a New York Probate Lawyer said five miscellaneous proceedings were filed with the court in connection with the estate administration and that of the trust. On 10 December 2008, some of the issues raised were resolved in a stipulation of partial settlement entered into by all the interested parties, viz: that A and B, as co-trustees of the supplemental needs trust, would enter into a contract for the purchase of property-two which C and CC agreed to use as their long-term primary residence; that C and CC, who were residing in decedent’s real property, property-one, would vacate that property and move to property-two; and that the fiduciaries are obliged to put property-one up for sale within 90 days after respondents move out. Pursuant to the agreement, the co-executors purchased property-two and made it available to respondents as of 16 March 2009. Nonetheless, respondents refused to move out of property-one, and the agreement does not specify a date by which they are required to do so.

Published on: May 29, 2013

Probate Court Discusses the Legality of Asset Purchase Agreement

by Stephen Bilkis

The Facts of the Case:

On 8 January 2006, the decedent died with a will dated 31 December 1993. On 26 April 2007, the decedent’s will was admitted for probate (will contest proceeding) by the court and a decree was thereafter issued, and letters testamentary also issued to the decedent’s wife as executor of the estate of her husband, the decedent (for estate administration as may be determined in estate litigation). At the time of the decedent’s death, he owns a surveying business.

On 12 December 2007, an Asset Purchase Agreement was entered into between the decedent’s wife and “A” where “A” agreed to purchase the decedent’s business and all of the assets used in connection with the business. The purchase price was $375,000.00. On 14 December 2007, “A” executed a promissory note in the sum of $200,000.00. The note was guaranteed by a Land Surveyor company, “X”. The terms of the promissory note provide that “A” will pay the sum of $200,000.00, together with interest thereon at the rate of 5% per annum, in sixty consecutive monthly payments of principal and interest, each of which, except the last, was required to be in the sum of $3,774.25, the first payment to be made before 14 January 2008.

Published on: January 24, 2013

Landlord Commences Nonpayment Summary Proceeding Against Tenants

by Stephen Bilkis

In a court proceeding, a complainant filed a motion to stay pending the determination of an appeal from an order of the civil court. New York Probate Lawyers said that upon the papers filed in support of the motion and the papers filed in opposition, the court consequently ordered that the motion is granted on condition that the appeal will be completed. The complainant however was directed to pay the opponent any and all arrears in rent and/or use and occupancy at the rate previously payable as rent within 10 days from the date of the decision. They also need to continue to pay the opponent’s use and occupancy at a like rate as it becomes due. The court further ordered that in the event that any of the above conditions are not met, the court, on its own motion, may vacate the stay, or the opponent may move to vacate the stay on three day’s notice.

In another case, another appeal was also filed from an order of the civil court. The order, insofar as appealed from, denied the branch of the tenants’ motion in seeking an award of attorney’s fees.

The landlord initiated the holdover proceeding after terminating the tenancy based upon the tenants’ failure to cease using the basement portion of the apartment as a living room. Based on records, the said usage had resulted in the issuance of a violation by the department of buildings. Thereafter, the parties entered into a condition, contained in which was an agreement that tenants had cured the breach to landlord’s satisfaction by moving their furniture and personal items, and the matter was marked off the calendar so that the department of buildings could re-inspect the basement.

Published on: December 29, 2012

Court Looks at Whether Defendant is Liable For Negligence

by Stephen Bilkis

A New York Probate Lawyer said in an action to recover damages for personal injuries, the plaintiffs allegedly sustained personal injuries when the limb of a tree fell onto the motor vehicle in which they were traveling, in the defendant Village of Great Neck Estates. Thereafter, a Nassau Estate Litigation Lawyer said that, the plaintiffs commenced this action, alleging, inter alia, that the accident and their resulting injuries were proximately caused by the negligence of the Defendant County of Nassau in failing, among other things, to remove a dead and/or diseased tree. A Nassau Estate Litigation Lawyer said that, the defendant County subsequently cross-moved for summary judgment dismissing the complaint insofar as asserted against it on the grounds that the plaintiffs had not complied with the prior written notice requirement set forth in section 12-4.0 (e) of the Administrative Code of Nassau County and that it lacked both actual and constructive notice of the purported hazard. A Nassau Estate Litigation Lawyer said that, the defendant County additionally sought to dismiss the complaint insofar as asserted by the plaintiff Lakeysha Agugbo on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Supreme Court properly denied the County’s cross motion and held that: In an action to recover damages for personal injuries, the defendant County of Nassau appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered February 21, 2007, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

The issue in this case is whether defendant is liable for damages, for the injuries sustained by the plaintiff on the ground that the resulting injuries were proximately caused by the negligence of the Defendant County in failing, among other things, to remove a dead and/or diseased tree.

The Court in deciding the case said that, Prior written notice statutes apply to “actual physical defects in the surface of a street, highway or bridge of a kind which do not immediately come to the attention of the town officers unless they are given actual notice thereof”. Accordingly, the Court held that, the prior written notice requirement invoked by the County does not apply to the facts of this case. Furthermore, the County failed to establish a prima facie case that it lacked actual and constructive notice of the alleged hazard in this case. Lastly, the Court held that, the plaintiff Lakeysha Agugbo was not required to establish that she sustained a serious injury in the subject accident as she did not allege any negligence on the part of the County in the use or operation of a motor vehicle. Instead, the allegations against the County related to premises liability. Therefore, the Court held that, the County does not qualify as a covered person within the meaning of Insurance Law § 5102 (j) and § 5104 (a).

Published on: December 24, 2012

Many People are Unsure of What an Attorney in Fact Is

by Stephen Bilkis

Many people are unsure about what an attorney –in –fact is. An attorney – in –fact is appointed when a durable power of attorney is created. The attorney – in – fact will act on behalf of another individual who is referred to as the principal.

The power that is given to the attorney – in –fact may be for a specified amount of time or for a special reason. Many business owners will use an attorney-in-fact when they are going to be away for a period of time either due to travel or because they are ill.

There is a lot of responsibility that comes with being an attorney – in – fact as any estate lawyer will inform you. When choosing someone for this position it is important to make sure that the person that is chosen is extremely trustworthy and honest.

Published on: December 22, 2012

Both a Will and Advanced Health Care Directive are Important in Estate Planning

by Stephen Bilkis

Facing your mortality is not a pleasant task. However, it is important to discuss an estate plan with a NY estate attorney in order to make sure that your family and loved ones are taken care of should you pass away. A last will and testament is one of the most important documents that will be in an estate plan. Another document that should be considered is an Advanced Health Care Directive.

An Advanced Health Care Directive is a document that should be created as soon as possible. This document should be in place long before they would be needed. An estate lawyer will inform you how important it is to have this type of document in place. The Advanced Health Care Directive describes your wishes involving your health care should you become incapacitated and unable to make these decisions for yourself. This document will include what your wishes are in regard to life support, medications, and which life sustaining measures should be taken in regard to your health care needs.

A New York Probate Lawyer said a tragedy may occur at any time. This is why the Advanced Health Care Directive is so important to discuss with your estate lawyer. If there are no written instructions provided by you about your care all of your health care decisions will be made by either the doctors or your loved ones. This can be a difficult burden for your loved ones to face, especially when they are already dealing with the tragedy.

Published on: December 21, 2012

Court Determines the Proximate Cause of Injuries

by Stephen Bilkis

In an action to recover damages for personal injuries, the plaintiffs allegedly sustained personal injuries when the limb of a tree fell onto the motor vehicle in which they were traveling, in the defendant Village of Great Neck Estates. Thereafter, a New York Probate Lawyer said that, the plaintiffs commenced this action, alleging, inter alia, that the accident and their resulting injuries were proximately caused by the negligence of the Defendant County of Nassau in failing, among other things, to remove a dead and/or diseased tree. A Nassau Estate Litigation Lawyer said that, the defendant County subsequently cross-moved for summary judgment dismissing the complaint insofar as asserted against it on the grounds that the plaintiffs had not complied with the prior written notice requirement set forth in section 12-4.0 (e) of the Administrative Code of Nassau County and that it lacked both actual and constructive notice of the purported hazard. A Nassau Estate Litigation Lawyer said that, the defendant County additionally sought to dismiss the complaint insofar as asserted by the plaintiff Lakeysha Agugbo on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Supreme Court properly denied the County’s cross motion and held that: In an action to recover damages for personal injuries, the defendant County of Nassau appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered February 21, 2007, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

Queens Probate Lawyers said the issue in this case is whether defendant is liable for damages, for the injuries sustained by the plaintiff on the ground that the resulting injuries were proximately caused by the negligence of the Defendant County in failing, among other things, to remove a dead and/or diseased tree.

The Court in deciding the case said that, Prior written notice statutes apply to “actual physical defects in the surface of a street, highway or bridge of a kind which do not immediately come to the attention of the town officers unless they are given actual notice thereof”. Accordingly, the Court held that, the prior written notice requirement invoked by the County does not apply to the facts of this case. Furthermore, the County failed to establish a prima facie case that it lacked actual and constructive notice of the alleged hazard in this case. Lastly, the Court held that, the plaintiff Lakeysha Agugbo was not required to establish that she sustained a serious injury in the subject accident as she did not allege any negligence on the part of the County in the use or operation of a motor vehicle. Instead, the allegations against the County related to premises liability. Therefore, the Court held that, the County does not qualify as a covered person within the meaning of Insurance Law § 5102 (j) and § 5104 (a).