Queens

Published on: July 10, 2014

Court Decides a Case Regarding Kinship Issues

by Stephen Bilkis

A New York Probate Lawyer said this is a case of accounting of the Public Administrator, where the issue of kinship was referred to a court attorney/referee pursuant to SCPA 506. All parties stipulated to waive the report of the referee and to allow kinship issues to be decided by the court based upon the transcripts of the hearing, the documentary evidence, and the arguments made by the attorneys for the claimants and the guardian ad litem representing the interests of unknown distributees.

A New York Will Lawyer said that the decedent died intestate, a resident of Nassau County, in May 2006. Letters of administration issued to the Public Administrator in January 2007. The account filed by the Public Administrator shows the receipt of $354,397.29 of estate assets. There are three alleged maternal cousins of the decedent and seven alleged paternal first cousins of the decedent.

Long Island Probate Lawyers said that in order to establish their rights as distributees, claimants in a kinship proceeding must prove: (1) their relationship to the decedent; (2) the absence of any person with a closer degree of consanguinity to the decedent; and (3) the number of persons having the same degree of consanguinity to the decedent or to the common ancestor through which they take. Claimants who allege to be distributees of the decedent have the burden of proof on each of these elements. The quantum of proof required to prove kinship is a fair preponderance of the credible evidence.

Published on: May 29, 2014

Defendant Appeals Judgment from Foreclosure Proceeding

by Stephen Bilkis

A New York Probate Lawyer said in an action transferred to this court from Supreme Court, Nassau County, defendant, a house loan corporation, one of several defendants, moves the court for an order dismissing the complaint as against it. Plaintiffs oppose Countrywide’s motion and cross-move for summary judgment dismissing Countrywide’s answer, or, in the alternative, striking Countrywide’s fourth and seventh affirmative defenses.

A Nassau County Estate attorney said that this action emanates from a foreclosure proceeding involving property located at Hempstead, New York. That property was owned by an individual who died intestate in July 1986. Her brother administered her estate as voluntary administrator pursuant to SCPA Article 13. It appears, although it is not entirely clear, that the sole distributee and that the subject property vested in him immediately upon his sister’s death. The other then died testate on June 9, 1994. Th deceased was appointed the voluntary administrator of the estate.

A New York Will Lawyer said the court’s file contains the original will which devises and bequeaths all of his property to his cousin who died in August 2000. There was no deed executed from the estate of the first decedent to the second, nor was there a deed from the estate to the deceased executor. Although the original will was filed in the court incident to the voluntary administration of the estate of the second decedent, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the decedent, the administrators of his estate, and claim to be his only distributees.

Published on: May 26, 2014

Family Member Files Objections to Accounting in Estate Proceeding

by Stephen Bilkis

A New York Probate Lawyer said the decedent died in May 2004, leaving a will which was admitted to probate. The decedent was survived by his four children. The will makes pre-residuary cash bequests of $45,000.00 to each of the children. The will further provides that the decedent’s residuary estate be divided equally among his four children. Letters testamentary issued to petitioner in July 2004.

A Nassau County Estate lawyer said that Petitioner originally filed a First and Final Accounting of his proceedings covering the period May 2004 through January 2008. Thereafter, he filed a First Interim Account of the Estate of the decedent. This document covers the period from May 2004 to January 2008, the same period covered by the First and Final Accounting. The Interim Account was verified by Petitioner in February 2009, nearly one year after the First and Final Account.

A New York County Will Lawyer said the brother filed objections to the accounting. The parties stipulated at trial that the estate had the burden of proof on the issue of whether the decedent made a loan to the brother. In addition, the parties acknowledged that petitioner took an advance payment of commissions in the amount of $10,0000.00, without prior court order and repaid the sum of $10,000.00 to the estate.

Published on: May 18, 2014

Public Administrator Seeks Requests an Accounting and Attorneys Fees

by Stephen Bilkis

A New York Probate Lawyer said in this accounting proceeding are the issues of attorney fees and accountant fees. The Public Administrator also seeks approval of commissions. In addition, the Public Administrator asks for approval to disallow the claims of several hospitals, various healthcare corporations and two insurance corporations on the grounds that each claimant has failed to submit documentary evidence sufficient to substantiate any such claim and failed to complete and return the Affidavit of Claim provided to each claimant by the Public Administrator. The Public Administrator also asks for authorization to distribute the sum of $1,781.28 to the New York State Comptroller’s Office for the benefit of the unknown holder in due course of a money judgment entered by the First District Court of Nassau County in favor of a bank. Lastly, the Public Administrator asks to be released from the surety bond.

A New York Will Lawyer said the decedent man died intestate as a resident of Nassau County. Letters of Estate Administration were issued to the Public Administrator. The decedent was survived by three siblings. The summary statement shows charges to the accounting party of $30,141.29.

With respect to the issue of attorney 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 Court is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

Published on: May 12, 2014

Court Asked to Rule on the Issue of Kinship

by Stephen Bilkis

A New York Probate Lawyer said that, in this accounting by the Public Administrator of Nassau County as administrator of the decedent’s estate, the issue of kinship was referred to a referee pursuant to SCPA 506. All parties stipulated to waive the report of the referee and to allow kinship issues to be decided by the court based upon the transcripts of the hearing, the documentary evidence and the arguments made by the attorney for the claimants and the guardian ad litem representing the interests of missing and unknown persons. Also before the court is the settlement of the Public Administrator’s account for the period from August 26, 2005 to August 31, 2007, as brought current through August 31, 2009, as well as the legal fees of the guardian ad litem. The guardian ad litem has filed a report dated April 23, 2010 in which she states that she has no objections to the account as brought current and which she finds to be complete. In her report, the guardian ad litem also makes certain conclusions regarding kinship that are discussed below.

A New York Will Lawyer said that, the decedent died intestate, a resident and domiciliary of Nassau County, on August 26, 2005. Letters of administration issued to the Public Administrator on October 7, 2005. The account, as brought down to date, shows total charges of $621,723.92, total credits of $147,469.51 and a balance on hand of $474,254.41. Objections to the account were filed by two individuals who claim to be distributees of the decedent. They objected to 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 asked for a hearing to establish kinship.

The issue in this case is whether the claimant’s objection to 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 asked for a hearing to establish kinship should be granted.

Published on: May 9, 2014

The Issue in this Case is Whether Petitioner’s Petition for Reconveyance Should be Granted.

by Stephen Bilkis

A New York Probate Lawyer said that, petitioners are who are, respectively, the suspended co-executor and the temporary co-administrators of the Estate of the decedent (hereinafter the estate). Respondent is the suspended co-executor of the estate. Petitioners commenced these proceedings to remove respondent as co-executor and to surcharge him for his self-dealing with respect to an estate asset consisting of a partial interest in a limited partnership known as North Shore Mart. Petitioners appeal and respondent cross-appeals from an order of Monroe County Surrogate’s Court, which, following a reference of factual issues on respondent’s accounting, confirmed the report of the referee and made additional determinations on issues not addressed by the referee.

A New York Will Lawyer said that, insofar as pertinent to this appeal, the Surrogate ordered respondent to reconvey to the estate administration a 36.4285% interest in North Shore Mart; ordered that such reconveyance be in the nature of a limited partnership interest rather than a general partnership interest or tenancy in common; denied the estate’s request for reconveyance of an additional 6.0715% interest in the partnership; awarded the estate a judgment of $1,152,645.82 plus interest, representing (after offset) the estate’s interest (36.4285%) in amounts diverted by respondent from the partnership to himself and his wife; denied without prejudice the estate’s claim to recover tax benefits (for partnership losses) that the estate would have realized but for respondent’s misappropriation of its interest in the partnership; denied the estate’s request to recover for the unnecessary interest expense incurred by the partnership as a result of his diversion of partnership assets; deferred the estate’s request for an award of attorney’s and accountant’s fees; denied the estate’s request for an award of punitive damages; denied the estate’s request for costs and disbursements; and ordered respondent to pay one-half of the referee’s fees.

A Long Island Probate Lawyer said that, on appeal the estate contends that it is entitled to reconveyance of a 42.5% interest in North Shore Mart; that such reconveyance must be in the form of a general partnership interest or tenancy in common; that it is entitled to a judgment equal to 42.5% of amounts diverted from the partnership by respondent; that the estate is entitled to other amounts, including a proportionate share of interest paid as a result of unnecessary borrowing by the partnership and compensation for tax benefits the estate would have realized but for respondent’s misappropriation; and that it is entitled to additional relief, including attorney’s and accountant’s fees, punitive damages, referee’s fees, and costs and disbursements. On his cross appeal, Saul challenges the Surrogate’s award to the estate of a money judgment and of an interest in the partnership at its present value.

Published on: May 4, 2014

Petitioner Alleges Undue Influence

by Stephen Bilkis

A New York Probate Lawyer said that, in this contested probate proceeding, the proponent moves for an order pursuant to CPLR 3212 granting summary judgment dismissing objections to the offered will and admitting it to probate. The decedent died on March 19, 2006. Decedent had no issue nor any known relatives. The proponent was named as the sole residuary beneficiary in a prior will of the decedent dated December 1, 1993. The proponent is the daughter of the decedent’s predeceased husband, who died on November 3, 1998. The will offered for probate dated April 6, 1999 bequeaths one-half of decedent’s residuary estate to a long-time friend who resides in Germany, one-quarter to a neighbor, and one-quarter to another neighbor. A friend, is the nominated executor and the proponent.

A New York Will Lawyer said that, in December 1998, the proponent commenced a guardianship proceeding pursuant Article 81 of the Mental Hygiene Law in Supreme Court, Nassau County, alleging, among other things, that the decedent was incapable of managing her affairs. During the pendency of the guardianship proceeding, decedent executed a will dated January 11, 1999, in which she left her residuary estate to her friend, $50,000.00 to her neighbor and the sum of $1,000,000.00 to the American Red Cross. The January 1999 will was executed in the office of the attorney who drafted the will. The attorney first represented the decedent in the guardianship proceeding. The court evaluator appointed in the guardianship proceeding, reported to the Supreme Court that in his opinion, based on an interview with the decedent, decedent was not an incapacitated person and that no guardian was required. The guardianship proceeding was discontinued by stipulation dated March 22, 1999.

A Queens Probate Lawyers said that, the propounded will dated April 6, 1999 was also prepared by the said attorney. She met with the decedent on at least four occasions between the January 1999 will and the April 1999 will. The propounded will eliminated the bequest to the American Red Cross, increased the bequest to her neighbor and provided a bequest for another neighbor. The will was executed in the decedent’s home and the will’s execution was supervised by the said attorney. As referenced above, the decedent had previously executed a will dated December 1, 1993 that left her entire estate to her husband if living, or if not living, to the proponent. A second guardianship proceeding, commenced in July 2001 by the proponent, resulted in an order and judgment dated October 20, 2001 appointing the proponent and guardian for the personal needs of decedent and the guardian for the property management of decedent.

Published on: April 13, 2014

Court Rules on Reasonable Attorneys Fees in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent died on June 4, 1931, a resident of Nassau County. His will dated November 26, 1930 was admitted to probate by decree dated June 15, 1931. The will created a trust for the benefit of the beneficiary under Article ELEVENTH. Letters of trusteeship originally issued to. The beneficiary died on August 30, 1989, a resident of New York County, leaving a will and codicil which was admitted to probate by the Surrogate’s Court of New York County by decree dated October 6, 1989. At the time of her death, the trustees of the trust were the beneficiary and the Bank.

A New York Will Lawyer said that, pursuant to Subdivision A of Article ELEVENTH of the decedent’s will, the trust is to be administered and disposed of as follows: “A. If my said daughter shall survive me, to invest and from time to time reinvest said share and to collect the income thereof, and during the life of my said daughter apply the net income thereof to the use of my said daughter by payment thereof to her, and IN FURTHER TRUST upon the death of my said daughter to pay and distribute the principal of the trust estate so held to and among the lawful issue of my said daughter who shall survive my said daughter and the lawful issue of my said son, who shall survive my said daughter, in such amounts, equal or unequal, as my said daughter in her uncontrolled discretion may, by last will and testament duly admitted to probate and not otherwise, appoint, expressly granting to my said daughter the right in the exercise of such power of appointment to exclude wholly from participation therein any one or more of her issue and/or any one or more of the issue of my said son; provided, however, that my said daughter, by last will and testament duly admitted to probate and not otherwise, may on such terms and conditions as she may think fit appoint any part or parts of the principal of said trust estate to a trustee or trustees in trust for the use of any of the lawful issue of my said daughter born before my death and her surviving, or of any of the lawful issue of my said son born before my death and her surviving, during the life of the cestui que trust of each trust so created, or for such lesser period as she may think fit.”

A Staten Island Probate Lawyer said that, the decedent daughter was survived by her three children,. In accordance with the decedent’s exercise of her power of appointment, Chemical Bank divided the principal of the decedent trust into three equal shares and held one such share in separate further trust for each of her children. This is an accounting with respect to the sub-trust for the benefit of the child. A Nassau Estate Administration Lawyer said that, by decree dated April 6, 1992, was appointed to serve as co-trustee of the fist child sub-trust with Manhattan Bank (successor by merger to Chemical Bank). By order dated February 27, 2008, this court approved the resignation of the Bank, as co-trustee of the sub-trust for the first child and the appointment of the decedent. The presumptive remainder men of the sub-trust for the benefit of the first child/son, the decedent’s great-grandchildren, all of whom are adults. Citation issued to all of the presumptive remainder men, as a successor trustee of the sub-trust. None of them have appeared in this proceeding.

Published on: April 8, 2014

Court Rules on an Application for Letters Testamentary

by Stephen Bilkis

A New York Probate Lawyer said this is an application for preliminary letters testamentary. The decedent died in December 2005 leaving a will (the “2005 Will”) and a prior will in January 2003 (the “2003 Will”). The 2003 will nominates the decedent’s daughter as executor and another daughter as successor executor. The 2005 will also nominates the first daughter as executor. The decedent was also survived by her other daughter.

A New York Will Lawyer said that the 2003 will bequeaths all shares that the decedent had in any companies or corporations to the decedent’s grandchildren, equally and the decedent’s bank accounts to her daughters equally. The 2003 will further provide for bequests of tangible personal property. The 2003 will gives the decedent’s cooperative apartment in equal shares. The remainder of the estate is bequeathed in one-third (1/3) shares to each of the decedent’s daughters.

The 2005 will gives all of the decedent’s jewelry to a daughter, and the balance of the decedent’s tangible personal property located in her home to another daughter and her husband. The 2005 will further provide for a bequest of the decedent’s joint bank account to the daughter executor or if she does not survive, to another daughter. Under Article FOURTH of the 2005 will, the residuary estate is bequeathed to the daughter executor.

Published on: April 4, 2014

Court Determines Fee to be Paid to Guardian Ad Litem

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, died a resident of Nassau County on March 2, 2007, leaving a last will and testament dated June 4, 1993. A petition for probate was filed by a legatee under the will who was related to the decedent by marriage. By order dated February 1, 2010, the court appointed a guardian ad litem to represent the interests of decedent’s missing and unknown distributees. On February 3, 2012, the guardian ad litem filed his report recommending that the will be admitted to probate. At that time, he also filed an affirmation of services. At the request of the court, the guardian ad litem filed a supplemental affirmation on July 24, 2012.

A New York Will Lawyer said the issue in this case is the determination of the fee payable to the guardian ad litem.

Long Island Probate Lawyers said 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 the administration 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”.