Articles Posted in Uncategorized

Published on:

by

Under New York law, when a child dies, a parent can be disqualified from inheriting from the child’s estate under two conditions. First, the parent can be disqualified if the parent did not provide support to the child as when the child was under the age of 21.  Second, the parent can be disqualified if the parent abandoned the child. EPTL § 4-1.4.

In Matter of the Estate of Chatham, the administrator of the minor child’s estate was the child’s mother.  She petitioned the court requesting that the child’s post-deceased father be disqualified based on abandonment and failure to support.  The widow of the child’s father objected to the child’s mother’s petition to disqualify the child’s father.

Background

by
Posted in:
Published on:
Updated:
Published on:

by

New York law provides that a parent would not be entitled to share in the intestate estate of their minor child if the parent did not support the child during their life or if the parent abandoned the child. EPTL §4-1.4(a). In In the Matter of Estate of Ball, the father of the deceased child argued that he should not have been disqualified based on failure to pay child support.

Background

In February 2003, the child died while in daycare.  He was 20 months old at the time. The mother sought to prevent the child’s father from sharing in the child intestate estate. The mother and father of the child were not married. The child was conceived from a casual relationship. The father initially doubted paternity and the mother did not put the father’s name on the child’s birth certificate.

by
Posted in:
Published on:
Updated:
Published on:

by

In New York a construction proceeding involves a petitioner asking the Surrogate’s Court to interpret language in a will or trust that is unclear.  The language may be open to conflicting interpretations, the language may be inconsistent with other terms of the will, or the language simply might not make sense.

In In re Petition of Nadler, the decedent was survived by three adult children.  Four years prior to her death, the decedent created trust that was funded by shares of a realty company.  One of the decedent’s children is a trustee.  Under the terms of the trust, the children as beneficiaries were entitled to the income from the trust.   Five years after the decedent’s death, the primary asset of the realty company was sold for over $8 million, and a year later the realty company was dissolved.

The petitioners, the beneficiaries of the trust, petitioned the Nassau County Surrogate’s Court for a judicial construction to provide that because of the sale of the assets the realty company and its dissolution, there is no longer a need for the trust.  As a result, the trust should end and its assets distributed to the beneficiaries of the trust.  The petitioners argue that because the trust does not contain directions related to what should happen in the event of the dissolution of the realty company, there is an ambiguity that requires to court to make a judicial construction.  The petitioners point to language in a related trust that allows for the court to step in to resolve any ambiguity related to the trust termination date.  The petitioners also rely on the law which states that a trust can be terminated when its purpose ends.

by
Posted in:
Published on:
Updated:
Published on:

by

New York law provides that a parent can be disqualified for receiving death benefits of their minor child for two reasons:  for failing  to support the child, or for abandoning the child.  EPTL §4-1.4. In In re Lee, probate litigation was initiated requiring the Surrogate’s Court of New York County to determine whether the father of a deceased child should be disqualified based on failure to pay child support.

Background

In March 2016, the child died at age 14 while at boarding school.  At the time her parents were divorced. The mother was the custodial parent. The father was ordered to pay child support. The mother petitioned for and was awarded letters of administration for her daughter’s estate.  The father did not appear at the hearing and did not oppose the mother being appointed administrator.

by
Posted in:
Published on:
Updated:
Published on:

by

In this case, the Appellate Division, Second Department, considered whether the Surrogate’s Court of Kings County erred in granting summary judgment 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, 2014. 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.

by
Posted in:
Published on:
Updated:
Published on:

by

On May 21, 2017, at age 86, decedent E. Lowell Dorris passed away testate.  He was survived by 4 nieces and a nephew.  However, in his will, he named Luis Freddy Molano as his sole beneficiary. The value of the estate was around $350,000. The decedent’s four nieces initiated a will contest, alleging undue influence.  Benjamin Robinson, the executor and also the attorney who drafted the will, requested that the court dismiss the objection of the nieces.

A court will not allow a will that was made under undue influence to be probated.  Thus, if the nieces prevailed and the will was found to be invalid, the court would either probate a prior valid will or the court would declare the decedent to be intestate.  If the decedent is intestate and the nieces are the decedent’s intestate heirs, the nieces would share in the decedent’s estate.

Undue influence means that the testator drafted a will because someone illegally influenced them to do so.  In other words, the terms of the will do not reflect the wishes of the testator, but the wishes of the influencer.  The following circumstances tend to show the existence of undue influence:

Published on:

by

Leaving a will is the best way to ensure that property left in your estate after you pass away goes to the people you want to receive it.  Unfortunately, not everyone leaves a will. Intestate succession rules are in place to determine who is entitled to a decedent’s estate in the absence of a will. In other words, if you do not leave a will, New York provides a will for you.  Under New York’s law of intestate succession, a decedent’s heirs are always their surviving spouse or children, if any. Other relatives, such as parents and siblings would only be entitled to a decedent’s estate if the decedent passed way without either a surviving spouse or children.

In the case of In re D.W.L., the decedent passed away intestate in February 2007 at the age of 33 due to accidental carbon dioxide poisoning.  He was unmarried.  He was survived by his mother.  There were also 3 minor children who claimed (through their mothers) that the decedent was their father.

In September 2007 the decedent’s mother filed a petition for letters of limited administration. Initially she included in the petition that the decedent had 3 children. A year later she amended her petition to state that he had no children. This is significant because if he had no children, his mother would be his next of kin and entitled to his entire estate.  On the other hand, if he had children, they would be entitled to his entire estate and his mother would not be entitled to any portion of his estate.

by
Posted in:
Published on:
Updated:
Published on:

by

Settling the estate of a parent is difficult for children.  It is even more difficult when the children do not agree on how to handle property that they inherit together as tenants in common.

In Baucom v. Young, Dorothy Baucom died intestate on January 24, 2013, leaving 3 adult daughters:  plaintiff Cheryl T. Baucom  and defendants Deborah Young and Charlene Baucom. Defendant Charlene is developmentally disabled, and Deborah is her caregiver. Under New York’s law of intestate succession, because Dorothy did not leave a will with specific instruction as to how her estate is to be distributed, her 3 daughters were entitled to inherit her entire estate in equal shares.  The main asset in the estate was a three-story residential property in Brooklyn.

Ideally, the sisters would decide privately how to handle the property.  For example, one option would be to agree to sell the property and divide the proceeds equally.  Another option would be for one or two of the siblings to buy out the sibling or siblings who does not want to own the property.  Unfortunately, the three siblings in this case were not able to agree on the fate of the house on their own.

by
Posted in:
Published on:
Updated:
Published on:

by

Matter of A.

NY Slip Op 05842

The co-executor of the estate petitioned the court pursuant to 2103 to determine if certain funds were withheld from the estate of A. This appeal is from 2 Surrogate Court orders brought by A.S. Those orders denied AS her cross-motion pursuant to CPLR 3211(a)(5) to dismiss the petition regarding two bank accounts. This appeal is dismissed. The second order superseded the first. One bill of costs is awarded to petitioner, payable to A.S.

by
Posted in:
Published on:
Updated:
Published on:

by

A New York Probate Lawyer said that, before the court is the motion of the nominated successor co-trustee of the trusts created under Paragraphs Second, Third and Sixth of the will of the decedent. Movant seeks summary judgment pursuant to CPLR 3213 granting his petition for appointment as successor co-trustee pursuant to SCPA 1502. In the alternative, movant asks the court to issue an order pursuant to CPLR 3126 striking the objections to his appointment which were filed by a trust beneficiary, for her failure to provide discovery.

The decedent died on February 14, 2008, survived by his wife, hereinafter, “the objectant”, his son, and his daughter. Decedent left a will dated October 27, 2004, as amended by codicil dated October 12, 2006. The will and codicil were admitted to probate by this court on April 4, 2008. In Paragraph Second of the will, decedent established a credit shelter trust for the benefit of the objectant. In Paragraph Third of the will, decedent established a generation-skipping trust for the benefit of the objectant. In Paragraph Sixth of the will, decedent created a residuary trust for the benefit of the objectant. In connection with each of the three trusts, letters of trusteeship were issued by this court on April 4, 2008, to the three nominated trustees and the objectant.

One trustee submitted his written resignation as trustee on February 2, 2010. The nominated successor trustee, executed a renunciation on February 11, 2010. On May 13, 2010, the trustee filed a petition with this court for permission to resign and for the appointment of hereinafter, “movant”, the next successor trustee nominated by the decedent in his will.

Continue reading

Contact Information