Articles Posted in Probate & Estate Litigation

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During estate administration, a major responsibility of a personal representative is to identify, secure, and inventory estate assets. In some instances, a turnover proceeding is required to ensure that all assets that are part of the estate are accounted for. A turnover proceeding is a legal proceeding that occurs during which the representative of an estate requests that property of the estate in the possession of third parties is returned to the estate. SCPA  § 2103.

In Kelligrew, the court considered whether nearly $200,000 in funds transferred to via check drawn on the decedent’s account were assets of the decedent’s estate or a gift.

Background

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In the process of estate administration, when there is a disagreement about who has title to property or there has been a theft of assets, the executor of an estate can initiate a turnover proceeding to get more information and to recover property that belongs to the estate. SCPA  § 2103

Background

Decedent died on July 13, 2017. She left a will and was survived by six adult children as well as her long-time companion, the petitioner William Koughn. The decedent and Koughn split their time between homes in Florida and in New York.  However, in February 2017, the decedent’s children forced her to move from Florida to New York and initiated a guardianship proceeding.  Shortly before her death, one of the decedent’s sons, George Mahoney, was appointed as her guardian.

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Under New York law, when a child dies, typically their parents are their next of kin and are entitled to share in their intestate estate.  However, a parent can be disqualified from inheriting from the child’s estate under two conditions: if the parent abandoned the child before their 21st birthday or if the parent failed to provide financially for the child before their 21st birthday. EPTL § 4-1.4. In addition, there is a long-standing rule in New York that a person is not permitted to profit by their own wrongdoing.

Because children generally do not have significant estates. However, if the child’s death is due to an accident, they child may have been awarded a significant settlement from a personal injury claim for their conscious pain and suffering. In addition, the child’s next of kin may be entitled to share in a settlement for wrongful death.

Background

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Once an administrator has been appointed, SCPA § 711 provides that they can be removed or suspend under specific circumstances.  In In re Matter of Estate of Corey, the  Surrogate’s Court was to remove an administrator because he allegedly exceeded the scope of his fiduciary duties and responsibilities.

Background

The decedent died on July 8, 2018 at the age of 92. She was survived by three children and two grandchildren. She was intestate and left an estate valued at about $30,000,000.  All of the beneficiaries were eligible to serve as administrator.  However, they all agreed that attorney Markello should be appointed administrator.  Because Markello was not a beneficiary of the decedent’s estate, all of the beneficiaries had to approve his appointment.  Letters of administration were issued to Markello on August 8, 2018.

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In this case, the Appellate Division, Second Department, considered whether the Surrogate’s Court of Kings County erred in dismissing the objectant’s objections and admitting the decedent’s will to probate.

Background

The decedent died on May 20, 2014 leaving a will dated March 28, 22014. The petitioner filed a petition for probate on July 22, 2014. Several people filed objectants claiming lack of due execution, lack of testamentary capacity, undue influence, and fraud. The Surrogate’s Court dismissed the objections and admitted the will to probate.  An objectant appealed.

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In a contested probate case, the court considered whether there was an triable issue of fact with respect to whether the decedent had been subjected to undue influence at the time that he executed his will.

Background

On December 22, 2016, the decedent died after a terminal illness. He left a will dated December16, 20216. He was survived by three children. One of his children is the objectant. The petitioner submitted the for probate and the objectant filed objections.  The grounds for the will contest  include lack of  testamentary capacity and undue influence. The petitioner moved for summary judgment dismissing the objections.  The Surrogate’s Court granted the petitioner’s motion dismissing the objections and admitting the will to probate. The objectant appealed.

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In In re Kaufman, the Appellate Division was asked to determine whether the Surrogate’s Court erred in suspending the letters of co-executors without an evidentiary hearing.

When a testator makes a will, it is their last opportunity to let the world know what they want to happen to their property once they pass away.  Testators can also choose to nominate an executor who would be responsible for managing their estate.

Wills are legally enforceable documents, and courts have a duty to uphold their terms.  Thus, whenever the court is asked to make a ruling that would circumvent the wishes of a testator, they make sure that there is a very good reason to do so supported by clear evidence.

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In In re Steward the court considered whether the Surrogate’s Court erred in denying a motion to suspend co-administrators where the co-administrators were unable to get along.

SCPA § 711 describes the circumstances under which a court can  revoke letters of administration:

  • Wasted assets. The court has the authority to suspend an administrator if the administrator has wasted estate assets by mismanaging estate property, making illegal investments, by misapplying estate assets, or by otherwise injuring estate property.
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In In re Scott the Surrogate’s Court of Bronx County considered whether to extend preliminary letters testamentary over objections.

The petitioner, the decedent’s step daughter, was nominated in the decedent’s December 21, 2019 will to serve as the executor. The decedent died on January 30, 2020.  On July 31, 2020, the court issued an order granting preliminary letters testamentary to the petitioner.

“Letters” are an order issued by the Surrogate’s Court that gives an administrator legal authority to manage the estate of a decedent.  Typically they are issued an the beginning of a probate case when the will is admitted to probate. Preliminary letters are temporary letters that typically expire after six months.  They are issued to an executor nominated in a will that gives them limited authority when there is some sort of delay in the probate proceedings.  In this case, the delay related to an unresolved jurisdictional issue.

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In In re Lewner, the Surrogate’s Court of New York County was asked to revoke the authority of the administrator of an estate on the grounds that he had not been fulfilling his fiduciary responsibilities.

The decedent died on May 19, 2016 leaving an estate with a value of over $8,000,000.  The estate had an income of over $3,000,000 from its real estate holdings.  Preliminary letters testamentary were issued to respondent on June 10, 2016.

In his petition to revoke the respondent’s preliminary letters, the petitioner alleged that the respondent was unfit to serve as an administrator as demonstrated by numerous instances in which he failed to perform his fiduciary duties. SCPA § 711.  As an example, the petitioner described how in the more than four since the decedent’s death, the respondent failed to file estate tax returns, the decedent’s final income tax return, and the fiduciary income tax returns for the estate. As a result, the estate is exposed to significant interest and penalties.  In addition, the court’s records showed that the respondent failed to perform his duties as administrator including filing an inventory as required by  22 NYCRR § 207.20.

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