Brooklyn

Published on: October 31, 2013

Court Settles Real Property Dispute

by Stephen Bilkis

A New York Probate Lawyer said that, plaintiff asserts that summary judgment should be granted in his favor. He was married to his wife in January of 1995. On January 30, 1995, property was purchased at 2426 St. Raymond Avenue in Bronx County and title was held by defendant his wife and, her husband. Plaintiff asserts that his wife passed away on December 16, 2000 and since plaintiff and his wife held the property as tenants by the entirety, upon the death of his wife, her interest transferred to plaintiff as a matter of law.

A New York Will Lawyer said that, defendants oppose the motion by plaintiff and assert that plaintiff’s deceased wife, in her Last Will and Testament, bequeathed her half share of the property equally to her husband, the plaintiff, and defendant. Moreover, her will provided that defendant must approve, in writing, any decision to sell said property. Therefore, defendants contend that plaintiff is entitled to a 3/8 share of the value of the property as is defendant. In addition, defendant provided all of the money for the down payment on the property including closing costs in the sum of $27,000 and she paid for all renovations made to the property in the approximate sum of $7,000. Defendants assert that if the property is partitioned and sold, she should receive credit for those payments. Defendants further contend that there is a probate proceeding pending in

A New York Wills Lawyer said that, Surrogate Court in Bronx County as to the same issues raised in plaintiff’s cause of action herein and Surrogate Court is the proper forum in which to determine this matter. Therefore, defendants assert that the instant matter should be dismissed in the interest of judicial economy.

Published on: October 26, 2013

Executor Moves to Preclude Decent’s Grandchildren from Will

by Stephen Bilkis

In this probate proceeding the proponent, the decedent’s son who is the nominated executor and sole beneficiary under the propounded instrument moves to preclude the objectant, the guardian of the property of one of the decedent’s grandchildren who is an infant, from offering any evidence or testimony in this proceeding on the grounds that the objectant’s bill of particulars was untimely served (81 days after the demand instead of 30 days) and 15 days after all disclosure was to be completed, and that the responses therein are not in conformity with the specificity requirement set forth in Uniform Rules for the Surrogate’s Court.

A New York Probate Lawyer said the decedent died at the age of 73. The decedent’s only distributees are the petitioner, the infant grandson for whom a guardian ad litem (court appointed) was appointed and another grandson who consents to the probate of the propounded instrument. Although the guardian ad litem for the infant filed a report indicating that he found no basis to object to the admission of the will to probate, the infant’s father disagrees. After some delay caused in part by the necessity of obtaining guardianship of the infant’s property, the father eventually filed objections on the infant’s behalf.

A conference was held with the court in which the guardian ad litem participated and indicated that he would favor settlement of the issues raised. A New York Wills Lawyer said as no settlement was reached, the court rendered a decision relieving the guardian ad litem of his representation of the infant unless he was needed for any subsequent settlement discussions, inasmuch as the infant was represented by counsel retained by the guardian of his property who would vigorously prosecute the objections.

Published on: October 24, 2013

Court Determines if Bequest to Decedents Friend is Void

by Stephen Bilkis

A New York Probate Lawyer said that, in this uncontested proceeding to probate a will dated December 2, 1991, the issue presented is whether the bequest to decedent’s friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent’s son, whose legacy under the will is less than his intestate share as one of decedent’s six surviving children, was also one of the attesting witnesses. The third attesting witness does not receive any disposition or appointment under the will.

The issue in this case is whether the bequest to decedent’s friend is void under EPTL 3-3.2 in light of the fact that he was one of the three attesting witnesses and that decedent’s son, whose legacy under the will is less than his intestate share as one of decedent’s six surviving children, was also one of the attesting witnesses.

A New York Wills Lawyer said the court in deciding the case said that, EPTL 3-3.2(a)(1) provides that an attesting witness to a will to whom a beneficial disposition is made is a competent witness who can be compelled to testify with respect to the execution of such will but that the disposition to the attesting witness is void “unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder.” The purpose of the statute is to preserve the maker’s testamentary scheme to at least some extent by making all attesting witnesses competent while preserving the integrity of the process of will executions by removing the possibility that attesting witnesses who receive a disposition under the will might give false testimony in support of the will to protect their legacies.

Published on: October 21, 2013

Two Sons File for Accounting Proceeding

by Stephen Bilkis

This is an accounting proceeding wherein objections were filed by one of the two sons of the decedent who have equal shares in the residuary estate.

A New York Probate Lawyer said the issues presented before the court arise from a situation where an attorney-draftsman and his partner petitioned in the probate or will contest proceeding to be appointed co-executors, no objections to their serving in that capacity were filed in the probate proceeding and they continued to serve as co-executors without objection until the final accounting, at which time objections are raised to their request for two full executors’ commissions as well as attorneys’ fees. The objections to executors’ commissions and legal fees raise significant questions which no reported case has fully answered. The result hinges on the applicability of the precedents of Matter of Weinstock, Matter of Laflin and Matter of Harris to the facts of this case.

On 19 February 1985, the decedent died in his early nineties. He executed on 14 June 1983. A, a lawyer who had represented the decedent, was nominated as the primary executor. A New York Will Lawyer said the attorneys who are the accountants in this proceeding were named alternate co-executors. The will was admitted to probate on the waivers and consents of both of decedent’s sons. The primary executor renounced and both of the alternates, who are the sole partners of their law firm, qualified as co-executors of the estate. These attorneys have served as co-executors from the inception of the estate and have performed all of the legal services in the probate, tax and accounting proceedings.

Published on: October 19, 2013

Court Decides if Respondent was Able to Distribute Money via a Power of Attorney

by Stephen Bilkis

A New York Probate Lawyer said that, in this SCPA 2103 proceeding, the respondent moved to vacate her default and for other relief. The branch of the motion seeking to vacate the respondent’s default is now academic as a result of the court’s decision and order dated February 1, 2008. In that decision and order, the petitioner’s application to strike the respondent’s pleadings and to enter a default judgment in the sum of $173,000 was denied, provided that the respondent both paid the sum of $400 to cover the cost and fees for her failure to appear at a deposition and, thereafter, appeared to be deposed as directed.

A Bronx Estate Lawyer said that, in her affidavit in support of the motion, the respondent’s request for “other relief” is: (1) dismissal of the petition on the ground “that no asset of the estate” was ever removed by her; (2) dismissal of the petition on the ground that the “Stipulation of Settlement” filed in the probate proceeding was intended to cover “all matters and claims,” including any claim that the respondent removed estate assets; and (3) the imposition of sanctions on the petitioner’s attorney for knowingly filing a “frivolous” petition. In the alternative, the respondent requests that the proceeding be scheduled for a hearing.

A New York Will Lawyer said the issue in this case is whether the respondent was authorized to distribute monies from the decedent’s bank account to herself pursuant to a power of attorney.

Published on: October 12, 2013

Court Discusses the Rule of Perpetuities

by Stephen Bilkis

A New York Probate Lawyer said that a woman died on March 1, 1968 and her will dated October 8, 1958 was admitted to probate on March 20, 1968. On August 29, 1968, the appellee filed his petition for construction and revocation wherein he renounced any disposition and bequest made to him under said will and wherein he petitioned that paragraph FIFTH of the will be revoked and declared invalid. On September 18, 1968, the appellant as respondent filed his answer to said petition;

On December 19, 1968, the appellant filed his amendment to said answer which amendment embraced a revocable designation by a man of those relatives and corporations which were to take the principal of the trust at its termination. A New York Will Lawyer said this designation was executed on September 3, 1968.

On October 22, 1969, the distinguished probate judge entered his order adjudicating paragraph FIFTH to be null and void as violating the rule against perpetuities. The said order also held that the power of appointment given to the man could not be exercised until the death of the brother and that man’s attempt to do so was void. The trial court found it unnecessary to decide the question of whether the power was impossible of performance because of ill-defined, vague and ambiguous classes of recipients described therein. This latter question formed the basis of the appellee’s petition; the rule against perpetuities not being raised therein.

Published on: September 28, 2013

Brother Battles Sister Over Father’s Estate

by Stephen Bilkis

A man died at the age of 71 years and his wife, who had been battling cancer, also died the day before his own death. The deceased man’s successors are his children.

A New York Probate Lawyer said at the examination, the ten passbooks, the deceased man’s hospital records, the deceased man’s spouse’s hospital records, and the man’s daughter’s examination in the contested probate proceeding were admitted in evidence. Almost the entire balance in eight of the accounts had been withdrawn shortly prior to the death of the deceased man and the entire balance had been withdrawn from two accounts.

The accounts were payable as to either the deceased man or his spouse or the survivor in trust for the man’s daughter, to either the deceased man or his spouse or the survivor in trust for their granddaughter, to either the deceased man or his spouse or the survivor in trust for the son of the deceased man and to the deceased man or his spouse or the survivor.

Published on: September 24, 2013

Court Rules on Setting Fees for Legal Counsel of the Executor

by Stephen Bilkis

A New York Family Lawyer said in this uncontested accounting proceeding are the issues of the fees of counsel for the executor, accountant’s fees and reimbursements to the executor of sums advanced by the counsel.

A woman died as resident of Massapequa, New York. She was survived by her son, the petitioner and her daughter. Her will of September 30, 1970 and a codicil thereto dated June 22, 1972 were admitted to probate and letters testamentary were issued to the petitioner. A codicil is a document that amends, rather than replaces, a previously executed will. The decedent’s will provides that the residuary estate be divided equally between the two children but the daughter, if unmarried, will be given a two year right to occupy the decedent woman’s Massapequa home provided she pay real estate taxes. The decedent’s daughter resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

A New York Will Lawyer said as with any request for a fee, 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 fees rendered in the course of an estate regardless of a retainer agreement. 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: September 7, 2013

Court Reviews Details of Final Accounting

by Stephen Bilkis

Before the court is the first and final account of A as ancillary executor of the estate of B; an estate litigation. The court is asked to approve attorney’s fees, commissions, reimbursement of expenses for the estate administration and the settlement of the account.

A New York Probate Lawyer said on 3 May 2004, the decedent, B, died. B left a will dated 13 February 2001. At the time of her death, the decedent was domiciled in Florida. Ancillary letters testamentary issued to A on 18 July 2005. The accounting covers the period 3 May 2004 to 21 April 2009. An amended accounting covering the period 3 May 2004 to 22 December 2009 was filed on 5 February 2010. The amended accounting shows principal charges to the accounting party of $829,804.35. C, a $10,000.00 legatee and the beneficiary of fifty percent (50%) of the residuary estate filed objections to the accounting and the amended accounting. The ancillary executor is the beneficiary of the other fifty percent (50%) share of the residuary estate. By instrument dated 2 December 2010, C withdrew his objections to both the first account and the amended account.

A New York Wills Lawyer said with respect to the issue of attorneys’ 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 as held in Matter of Stortecky v Mazzone, Matter of Vitole and Matter of Phelan. 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 as was also held in Matter of Brehm and Matter of Wilhelm.

Published on: August 31, 2013

Court Discusses Conflict of Creditor Acting as an Administrator

by Stephen Bilkis

In this Estate Litigation action, a creditor of the deceased filed a petition. Petitioner asks the court to issue limited letters of administration to the Public Administrator of Nassau County so that he can defend the estate against creditor’s mortgage foreclosure action against decedent’s residential real property. The petition avers that the outstanding mortgage is in the amount of $373,954.81 and that there are no other outstanding debts or funeral expenses.

A New York Probate Lawyer said that deceased died sometime in September 2007 while visiting El Salvador. According to the petition before the court, decedent was survived by his wife and two minor children, all of whom are citizens and residents of El Salvador. The petition does not contain street addresses for these non-resident distributees. The petition further reflects that decedent was also survived by one adult child, who resides in decedent’s home, which is the subject of the foreclosure action underlying this petition.

Citation issued listing the wife and the Public Administrator, and was returnable. Affidavits filed with the court indicate that the citation was served. An affirmation in support of amending the petition and dispensing with service on wife was filed by counsel on behalf of the Bank one day prior to the return date of the citation. Counsel for petitioner affirms that the daughter advised his office that the wife lives in El Salvador but that the child was unable to provide the wife’s address. Counsel avers that wife’s residency in El Salvador was confirmed by the process server’s unsuccessful attempt to serve citation on the wife at decedent’s home. Attached to counsel’s affirmation is an affidavit of due diligence that reflects that in addition to attempting to serve the wife at decedent’s last address, counsel’s staff also ran a computer search for the wife using the on-line telephone directory for El Salvador, but did not find a listing for the wife’s name. The affidavit concludes by stating that “deponent duly exhausted all efforts to obtain jurisdiction over the defendant”