Suffolk County

Published on: August 1, 2012

An Estate Administrator Seeks to Bar Property Transfer

by Stephen Bilkis

A deceased wife, who owned a property at Brooklyn, has taken sole title as an occupant by the entirety following the death of her husband. The day after the death of the wife, a woman performed a deed whereby she allegedly conveyed, as the estate administrator and titled the property to herself as recipient. The woman performed a mortgage on the property in favor of a financial institution to secure a loan in the amount of $250,000.00. Consequently, the woman again performed a mortgage on the property in favor of a mortgage company to secure a loan in the amount of $340,000.00. According to the settlement, the mortgage transaction proceeds totaling $251,237.66 were used to pay off the prior financial institution’s mortgage. A New York Probate Lawyer said the approval of the financial institution’s mortgage was then recorded.

The complainant, a mortgage company, issued an approval of its $340,000.00 mortgage, apparently in error. The approval of the complainant’s mortgage was then recorded. Afterwards, the complainant filed a notice of pendency on the property and initiated the instant action to vacate the approval of mortgage and to restore its mortgage lien to its priority position.

Consequently, another woman claiming to be the administrator the estate (estate administration) moved for an order to cancel the notice of pendency, permanently barring as a lien and discharging of record to a certain mortgage on the property. The woman commenced an action against the first administrator to vacate and discharge of record the deed allegedly conveying title to the first administrator. In her complaint, she alleged that she was the sister and next of kin of the deceased wife and her interest in the property accrued upon the death of her sister. In addition, no will of the deceased wife has been probated in Kings County or elsewhere. She alleged that the first administrator had no power to convey the property of her deceased sister’s assets and the deed should therefore be nullified and discharged of record.

Published on: July 29, 2012

Court Says Testator has Right to Choose Who Settles Their Estate

by Stephen Bilkis

In a probate proceeding, a New York Probate Lawyer said that the petitioner, Joanne Zaccaria, appeals from so much of a decree of the Surrogate’s Court, Kings County, denied that branch of her cross motion which was for the issuance of preliminary letters testamentary to her for the estate of Paula M. Venezia, and granted those branches of the motion of the objectant, Edward Hayes Pennington III, which were to deny the issuance of preliminary letters testamentary to the petitioner for that estate, to disqualify the petitioner from service as executrix, and to issue letters of administration to Edward Hayes Pennington III.

The issue in this case is whether the Surrogate Court in this probate proceeding erred in denying petitioner’s cross motion for the issuance of preliminary letters testamentary on the estate of the testator, and granted that branch of the motion of the objectant, Edward Hayes Pennington III, to issue letters of administration to him.

The Court reversed the decision insofar as appealed from, on the law and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Surrogate’s Court, Kings County, for an evidentiary hearing in accordance herewith, and thereafter, a new determination on that branch of the cross motion which was for the issuance of preliminary letters testamentary to the appellant, and those branches of the motion which were to deny the issuance of preliminary letters testamentary to the appellant, to disqualify the appellant from service as executrix, and to issue letters of administration to Edward Hayes Pennington III.

Published on: July 15, 2012

Court Decides if Letters Testamentary Should be Issued

by Stephen Bilkis

A man who had three children by a first marriage married a woman who had five children of her own. When she married her husband, her husband sold the house he owned and moved into the house of his second wife.

Sometime in Aprill 22, 2009, the man died a month after he executed a will. In this will, he named his daughter by his first marriage and her husband as the executors of his will. The couple was the ones who presented the will for probate. And they also asked the probate court to issue letters testamentary in their favor in accordance with the provisions of the will of their father.

The second wife of the testator objected to the probate of the will on the ground that her husband has had two major strokes and numerous mini strokes all throughout his confinement in a nursing home just prior to his death. He was diagnosed to be suffering from dementia and so he could not have known or understood the contents of the will he purportedly executed.

Published on: July 12, 2012

Court Discusses Attorney Client Privlege

by Stephen Bilkis

A man and his wife consulted a lawyer to plan the disposition of their estates on the event of their demise. The man and his wife both executed individual wills based on the advice and opinion of the lawyer they both consulted.

When the man died, his will was submitted for probate. His wife was named as executor of his will. The other heirs named in the will were the man’s children. During the probate proceedings, the children of the man asked that the executrix, the wife of the testator, be compelled to submit copies of the notes and letters sent by the lawyer of the testator to the testator where he summarized the wishes of the testator regarding the disposition of his estate.

A New York Probate Lawyer said the children of the testator claim that the attorney’s notes and his letters to the testator will yield information regarding his true wishes as he communicated it to his lawyer; it will also inform the court regarding the state of mind of the testator and may show whether the testator had the necessary testamentary capacity.

Published on: July 5, 2012

Petioner for Estate Claims Lawyer Misappropriated Funds

by Stephen Bilkis

Sometime in 1985, the respondent was retained by a woman to probate the Last Will and Testament of her deceased mother. The respondent accepted the retainer with full knowledge that the Will would have to be probated in the Court (for estate administration or will contest; estate litigation) in which he was employed. Thereafter, the respondent failed to apply to the Chief Administrator of the Courts for permission to engage in the private practice of law with respect to the subject estate, as follows:

In May of 1985, the respondent acting as the attorney for the estate, filed a probate petition and other relevant papers in the Surrogate’s Court, Kings County, but, in doing so, concealed the fact that he was the attorney for the estate.

On 6 June 1985, the subject Will was admitted to probate and an administratrix was appointed. The respondent was paid the sum of $1,200 for his legal services.

Published on: July 2, 2012

Court Holds Executrix was Negligent

by Stephen Bilkis

Two men were business partners. In 1925, one partner filed a suit to compel his business partner to account for the properties of the partnership in his keeping. The partner who sued contended that his business partner diverted the profits of their business.

While the suit for accounting was pending, the business partner died who was sued died. He left a will which was probated. An executrix was appointed in the will and approved by the probate court. A couple stood as sureties for the fiduciary bond of the executrix.

Soon, the surety also died and he also left a will which was admitted into probate. In 1932 the surety’s estate was settled.

Published on: June 25, 2012

Court Discusses Whether a No-Contest Clause Only Applies to Heirs

by Stephen Bilkis

A woman executed a will two weeks before she died in September 1992. She left an estate worth $2,000,000. Her will was offered for probate by the executors. During the proceedings, it was discovered that the woman filed with the Surrogate’s Court a prior will dated July 1992. The provisions of the 1992 did not provide for cash gifts to the attorney who drafted the will or to his wife who testified as to the due execution of the will, unlike the September 1992 will.

The charitable foundation contends that if the September 1992 will is found to have not been duly executed or if fraud or undue influence were brought to bear on the testator in the September 1992 will so as to also make bequests to the lawyer and his wife in her will, the residual estate which will be put in trust for the foundation would have been bigger.

The charitable foundation wishes to object to the probate of the September 1992 will but the will also contains a provision that if any of the beneficiaries of the will shall object to the probate of the will, the legacy made for them shall be revoked. A New York Probate Lawyer said this kind of provision is called an “in terrorem” or non-contest clause. It is meant to put the fear of disinheritance in the heart of those who were named beneficiaries in the will so that the estate will not be reduced by having to spend on legal costs.

Published on: June 23, 2012

Decedent’s Son Sues for Specific Performance

by Stephen Bilkis

A man and his male domestic life partner were co-owners of a cooperative apartment in Brooklyn, New York. They also co-owned a house in Southold, New York.

In his last will and testament, the man named his domestic life partner as his executor. He also left to him his share in the proprietary lease of the Brooklyn apartment and shares of stock. The man also gave cash gifts to his nephews amounting to $10,000 each.

The domestic life partner presented his the will for probate. The sons of the testator appeared during the probate proceedings but signed waivers signifying that they were waiving all objections they may have in the will. The will was admitted into probate in 2001 and letters testamentary were given to the testator’s domestic life partner.

Published on: June 19, 2012

Family Member Seeks to Invalidate Trust

by Stephen Bilkis

In situations of estate probate, there are often times when a person is appointed by the court to review the circumstances surrounding a will and to determine if the law has been followed in the distribution of the assets set forth in the document. This person is called the guardian ad litem. The guardian ad litem is an experienced attorney who’s responsibility is to prepare a detailed report where he lists his findings and based upon his findings, recommends the necessary action that should be taken to protect the interests of the person who has filed the complaint.

In the situation at hand, the decedent passed on May 9, 2007. There were four distributes named in the estate documentation. Two daughters were named, one son, and one granddaughter who is the child of a son who had passed prior to the death of the decedent. New York Probate Lawyer said one of the daughters filed a complaint with the probate court that the will naming only one of the son’s as the sole inheritor for the living trust of the decedent should be ruled invalid.

The reasons that were set forth to invalidate the living trust was that one of the daughters states that prior to the decedent’s death, the lone surviving son placed undue influence on the decedent up to and including fraud against the decedent while he was physically ill and depressed. The guardian ad litem in this case determined that the daughter might possibly have a case and determined that it was only proper for him to continue to represent the daughter in the future hearings in reference to the closing of the decedents affairs.

Published on: June 15, 2012

Family Questions Mental Capacity of Decedent

by Stephen Bilkis

On this contested probate proceeding, the guardian for the infant beneficiaries seeks for authorization to retain a medical expert to be paid from the assets’ proceeds.

It was initiated when a man died at the age of 88 and he was survived with seven children and two grandchildren. Afterwards, a man was appointed as the guardian for infant grandchildren of the deceased. Separate objections have been filed by the deceased children and the guardian on behalf of his charges. Based on records, the gross estate is estimated between $26 million and $35 million, consisting primarily of silver holdings, a yacht, farmland and real properties in New York and Connecticut.

Consequently, the proposed will was completed three weeks before the man died from lung cancer. It is offered for validation by the attorney-drafter. Under the proposed will, the deceased made pre-residuary inheritance of specific property, his interest in a corporation to some of his children, devised real property to one child, made monetary reward to his caretakers and disposed of his residuary estate to one of the charitable foundation he established in 1974.