Brooklyn

Published on: March 24, 2012

Court Determines Case Filed by Executor

by Stephen Bilkis

This is the probate proceeding of a deceased man’s last will and the objection filed by the counsel of the executor of the estate on the request from the court. The counsel of the executor has objected to a request from the court’s accounting department for the payment of an additional fee of $625.00 upon the executor’s required filing of the inventory of his List of Assets. The additional payment was requested based upon the addition of the real property located in North Carolina of his completed form. The executor of the property excluded that asset from the gross value of the assets as reported on the validation petition when it was initially calculated. The form for the petition required that improved and unimproved real property be listed only if it is located in New York State.

The Uniform Rules for the filing of the inventory of List of Assets shows no basis for excluding non-New York real property from the assessment of the gross properties passing by will, except with respect to a proceeding for ancillary validation. The part of the rules stated that the attorney of record shall provide the court a list of assets compose of the gross property for tax purposes but separately listing the assets that were either owned by the deceased individually including those in which the deceased has partial interest, or were payable or transferrable to the properties of the deceased and those properties held in trust. Also to be listed separately are those properties over which the deceased had the power to designate to a beneficiary, jointly owned property, and all other non validation property of the deceased. The section specifically requires the collection of the additional fee upon the filing of the inventory list, a requirement clearly contemplated by the enabling the law.

In the event such list of assets is not filed, A New York Probate Lawyer said the court may refuse to issue certificates, or may revoke the letters and may refuse to issue new ones until the list has been filed and the fees have been paid as provided. Failure to voluntarily file the list of assets may also constitute grounds for disallowance of commissions or legal fees. In case any additional filing fees are due, they shall be paid to the court at the time of the submission of any of the documents described.

Published on: March 23, 2012

Court Decides Jurisidiction Between Switzerland and U.S.

by Stephen Bilkis

A Swiss national died on July 7, 1941. Prior to his death, he executed a will in New York purportedly to cover his personal properties in this State. The will was executed in 1934. When he died in 1941, the personal properties left by the testator were divided among his widow and three children. The petitioner in this case was not given any share because he was deemed by the testator as having been amply provided for. The estate in New York was divided in such a manner that ½ went to the widow and the other half went to the two children minus the said petitioner. This settlement was finalized in October 25, 1941

Apart from the 1934 will, the testator also executed a hand-written or holographic will which was executed on March 2, 1940. This later will disposed of the properties located in Switzerland, the domicile of the decedent and a decree was issued by the proper court of Switzerland while the New York proceedings was still on-going. A New York Probate Lawyer said he 1940 will did not make any mention of the earlier 1934 will nor was there any express or implied revocation of the same. The later will of 1940 disposed of all properties of the testator without making any reference to the personal properties located in New York because the will was silent on the issue of what securities were to be disposed and where such securities could be located. The only thrust of the 1940 will was to make a disposition of all the properties specifically found in Switzerland and there was no mention about the securities located in the state of New York nor was there any reference to the 1934 will. The said will also stated that all the testator’s securities must be given to the wife and all real properties located in Switzerland be sold and the proceeds must be divided between the widow and the three children which includes the petitioner. Since the estate taxes figured heavily in the picture, there was very little left for the heirs and the surviving spouse to divide. The petitioner in particular received very little amount when all the taxes were factored in the computation of the net estate.

The petitioner, one of the sons of the testator, went to the Court and asked for the issuance of ancillary letters testamentary and to ask the court to vacate an earlier decree excluding him from the partition of the personal properties in New York which was the subject of the 1934 will. He also argued that under Swiss laws, the effect of a succeeding will is to revoke all prior wills executed by the testator and that therefore the probate of the 1934 will was not in order because of the existence of a later will which was executed in 1940. Bronx Probate Lawyers said he claimed that if the 1940 will is to be given effect, he would not have ended up with practically nothing because though there were almost no securities left in Switzerland at the time of the death of his father, there were on the other hand enough securities that can be divided coming from the personal properties located in New York. To all of these arguments, the executor countered that the petitioner is already barred by means of estoppels from pursuing and contradicting the decree because sufficient time has already elapsed between the finality of the estate administration and consequent liquidation and the filing of the proceedings made by the petitioner.

Published on: March 21, 2012

Court Hears Validation Proceeding for Deceased Priest’s Will

by Stephen Bilkis

A validation proceeding for the will of a deceased priest have two questions presented for determination. The matters to be determined are the right of the respondent to attack the jurisdiction of the Court and the finding of the residence of the deceased at the time of his death.

The Petition for Probate was filed together with an original will of the deceased. Two days prior to the filing, an order to search the safe deposit box of the deceased in a savings bank in New York was signed by the Monroe County Surrogate based upon a petition stating that the deceased had died a resident of the Rochester City New York. The safe deposit box was searched and a will identical to the one filed in Ontario County Court was found it was filed in the Surrogate’s Office of Monroe County Court by an officer of the said bank.

A New York Lawyer said that on the return day of the Citation, a Notice of Retainer and Appearance was filed by an attorney acting for the respondent who is a sister of the deceased. He advised the Court of the existence of what seemed to be a duplicate original will on file in the Monroe County Surrogate’s Office. The matter was adjourned until December 3, 1962, during which period of time the Court personally went to the Monroe County Surrogate’s Office and examined the application for the opening of the safe deposit box and the will which had been filed there as a result of such search. On December 3, 1962, a short hearing was held in the matter. The Court advised the respective attorneys that it had examined the file in Monroe County Surrogate’s Court. The attorney for the respondent requested an adjournment for two weeks with the understanding that he would file an answer with the Court and a copy with opposing counsel by December 10th and that the issues be raised by the answer and should be tried on December 17, 1962. On December 10th, respondent’s attorney filed an answer.

Published on: March 20, 2012

Court Discussed Enforceability of Swiss Estate Documents

by Stephen Bilkis

An American citizen was domiciled in Switzerland. He died on January 2, 1964. He executed a will in New York on November 6, 1961. In this will, he bequeathed his entire residuary estate to his second wife and directed that his will be submitted for probate in New York and for the laws of New York to govern his estate.

The testator’s first wife appeared as the guardian of his two children and objected in the probate proceedings. She claims that the testator’s property must be disposed of under Swiss law as this is provided for by a treaty between the United States and Switzerland. She claims that under the treaty of 1850, her ex-husband’s personal property must be distributed under Swiss law even if they are found in New York. Under Swiss law, her children will be entitled to shares in the estate as forced heirs.

A New York Probate Lawyer said the Surrogate did not rule on the objection of the first wife but it issued a decree admitting the will into probate and it ordered the executor not to pay or satisfy any distributive share without orders of the Surrogate.

Published on: March 18, 2012

Court Decides Jurisiction Issue Regarding Estate

by Stephen Bilkis

A decedent, who is a resident of Texas and domiciled at Mexico, has possessions in Cayman Islands.

A New York Probate Lawyer said the decedent, while living in New York in 1988, opened an investment account in London. During his lifetime, he deposited over $1,300,000 through a New York bank and his account was handled by an investment manager of the London investment house. The deceased named his marital son as the beneficiary of said investment account.

In 1989, the decedent made an arrangement with a trust officer of another bank to establish a discretionary off-shore trust account in Cayman Islands using the funds from his investment account in London.

Published on: March 17, 2012

Court Decides Will Jurisdiction Issue

by Stephen Bilkis

This case involves the settlement of the estate of a French born individual who acquired American citizenship at the age of 51 and died at the age of 79 in his domicile which was in Switzerland. He was survived by his wife a French national, and an acknowledged illegitimate son also a French citizen. The decedent left a will leaving all of his properties to his widow and leaving nothing to the said acknowledged illegitimate son. At the time of his death, the testator left properties in Switzerland, New York and France. The widow filed with a proceeding with the New York Surrogate court in order to claim the properties left by the testator and presenting the will for determination in the said court. The court admitted the will of the testator and took cognizance of the case and later on made a decree settling the estate administration by ordering that the properties net of any encumbrances and other obligations be released to the widow.

The acknowledged illegitimate son assailed the decision of the Surrogate Court of New York and filed an appeal for the revocation of the decrees made by the said court first when it assumed jurisdiction and second when it distributed the properties to the widow to the detriment of the share that the petitioner-son was supposed to be entitled if the case was tried in the court of Switzerland. The petitioner further alleged that since the decedent was a resident of Switzerland and he had considerable personal properties in the said country and only limited personalty in New York, then the court that has jurisdiction and the laws to be applied should be according to the Swiss law as envisioned in the 1850 Treaty between the United States and Switzerland that envisioned such a scenario happening with their citizens.

A New York Probate Lawyer said the petitioner then is of the opinion that the Surrogate Court of New York had no jurisdiction to try the issues involving this particular case. The petitioner also argued that there were personal properties in Switzerland that was brought by the widow to New York just so that it can be covered by the laws of New York which is according to him highly irregular and should also be struck down as a violation of the law.

Published on: March 14, 2012

Son Contests Mother’s Will

by Stephen Bilkis

A wealthy lady executed a will on February 10, 1992. In this will, she named her husband, a lawyer, to be the executor and principal beneficiary. Her husband was the same lawyer who drafted the will and the attesting witnesses to the will were a couple who were their neighbors and close friends.

In this will as well, the wealthy lady stated that her estate was valued at around $6,000,000. She gave $25,000 to each of her seven grandchildren. She established a trust fund for her husband comprised of credits she expected to receive. She bequeathed the interest earned from the credits she expected to receive to her daughter or to her children if the daughter does not survive her father. She left her residuary estate to her husband. To her son, she left nothing except for the bequest of $25,000 to each of his children. She stated in her will that she left nothing to her son because she had been supporting his children while she was alive and he was sure to receive benefits from the law practice he and his father (the testator’s husband) shared.

After filing the petition, the husband submitted an affidavit prepared by his attorney which contained the facts which the sole surviving attesting witness remembers. A New York Probate Lawyer said the husband also submitted a deposition testimony of the attesting witness as well as his own deposition as the lawyer who prepared his wife’s will. These deposition testimonies were submitted by him to the Surrogate Court to accompany his motion for summary judgment.

Published on: March 13, 2012

Validity of a Will Questioned

by Stephen Bilkis

A notary public whose duty is to administer oaths regarding the execution of public documents took a piece of ordinary notebook paper and folded it so that it made four pages. On this sheet of folded notebook paper, the notary public wrote in his own handwriting his last will and testament. T

he words “my Will and Testament” were clearly handwritten at the bottom near the signature of the testator. After the line where the testator’s signature appears, the words “witnessed this 21st day of January 1924” appears. After this line, on the left and right side of the bottom of the piece of paper, two signatures appear. At the bottom of the signatures, the addresses of those who signed are handwritten.

Nine years after writing down this document, the notary public deposited it with the Surrogate’s Court on Queens County for safekeeping. A New York Probate Lawyer confirmed that it remained in the safekeeping of the Surrogate’s Court until the notary public died in 1965.

Published on: March 8, 2012

Petitioner Disputes Will Jurisdiction

by Stephen Bilkis

The deceased was a French national who became a citizen of the United States. She stayed in New York for thirty years. Brooklyn Probate Lawyers said that during such time, she was employed as a secretary in a law firm. She returned to France as indicated in her residence card. The deceased left assets in New York which consisted of bank and brokerage accounts. She also had real properties in France consisted of an apartment and the personal properties therein. The estate administration was granted to the persons named in the will of the deceased.

The estate litigation in this case sprung from the provisions contained in the two wills, namely, the “French will” and the “New York will” recited that the deceased elected that her will be admitted to original probate in accordance with the laws of New York. Among the dispositions included, among others, the deceased’s life interest in her apartment in France, including the personal and household effects therein. The beneficiaries were her adopted son and friends, and a “mutual aid society.”

The adopted son had a will contest, disputing the jurisdiction of the New York court to allow the will, asserting the question concerning the conflicting laws as to which must govern in the disposition of the properties of the deceased.

Published on: March 7, 2012

Court Determines Authenticity of Will

by Stephen Bilkis

Testator in his lifetime had written a will and testament. Upon his death, nine loved ones who he intended to divide his assets to them outlived him. In the instrument, he named his wife and eight children as heirs of his bounty. The instrument was brought to court for litigation. Estate litigation lawyers represented all parties. It was the surviving spouse who brought the will to court for probate proceeding. Attorneys acting in lieu of decedents children questioned the contested will. They alleged failure of the wife to prove due execution and genuineness of the will. The contents of the instrument displayed fraud, intentional representation of material existing fact, and an outside pressure was used which negate the free will of the testator so that the maker of the will lack the necessary mental capacity in making said instrument valid.

Witnesses to the will in favor of the children testified, that in their control were duplicates of the will and testament. The said instrument was attested in the presence of eligible witnesses and their estate lawyers. They testified that the instrument under which they safe kept was an identical copy of the original will made by the decedent. The instrument then was submitted for examination and was granted by the probate court.

New York Probate Lawyer said the eight children of the decedent, represented by their estate lawyers then filed a motion for summary judgment before the estate administration courts wherein they seek an order denying probate of the supposed last will and testaments submitted by the wife. In support of the motion, affirmations from other witnesses were also forwarded to estate litigation courts such as additional memorandum of law and reply memorandum.