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Published on: March 23, 2016

Court Decides How to Handle Fire Insurance Proceeds

by Stephen Bilkis

This matter comes before the Court by reason of the objection of certain legatees of the decedents herein to that portion of the intermediate accounts filed by the Executor which allocates certain fire insurance proceeds in the sum of $16,813.20 for ultimate distribution to a church.

The Decedents, husband and wife, presumably died simultaneously in a fire in their home at Lyons, New York, on December 13, 1959. Decedents left reciprocal wills which were duly admitted to probate in Wayne County on January 15, 1960. On that day Letters Testamentary on the wills of the spouses, both late of the Town of Lyons, New York, were issued to the City of Detroit, Wayne County, Michigan.

The Executor of the Estate, deceased, now petitions for the Judicial Settlement of his first intermediate account in the two estates. In such petitions asks that this Court determine to whom the $16,813.20 insurance settlement, received on account of the fire loss to the real estate of the decedents at Butternut Street, Lyons, New York, should be paid.

Published on: March 23, 2016

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by Stephen Bilkis

This is a proceeding to construe and reform the last will and testament of a decedent who died on August 31, 2006 survived by four adult children. The will was admitted to probate by decree dated March 7, 2007, and the children were appointed as the coexecutors of the estate. The court has appointed a guardian ad litem to represent the disabled daughter’s interests in this proceeding. Jurisdiction is complete. The guardian ad litem has filed his report, and the matter has been submitted for decision.

A Kings County Estate Lawyer said that the daughter has filed a document entitled “Response to Executor/Fiduciary Petition for Construction of Will” in which she terms herself “petitioner.” The guardian has submitted a report in which he informs the court that after an article 81 hearing on April 23, 2008, the judge rendered a decision wherein he concluded that the daughter has certain deficiencies and limitations and further concluded that son would be appointed as daughter’s guardian with certain limited powers, which the ward does not enumerate.

Although the New York State Department of Health (DOH) has no current claim or pecuniary interest, it was cited and appeared in this proceeding by its attorney, the Attorney General of New York. DOH consents to having the will reformed to name trustees for the ARTICLE FOURTH trust, but takes no position as to who should be named as trustees. DOH opposes Irwin’s request to reform the ARTICLE FOURTH trust into a supplemental needs trust. DOH asserts that reforming the trust to create a supplemental needs trust is not necessary or appropriate given the language the decedent used in the will to pay Susan all of the net annual income of the trust without any trustee discretion or interference about how the money is to be used. DOH points out that the will postdates the enactment in 1993 of EPTL 7-1.12, the statute that authorizes the establishment of supplemental needs trusts for individuals with severe and chronic or persistent disabilities.

Published on: March 19, 2016

Court Decides Validity of Hospital Lien

by Stephen Bilkis

This is an appeal from an action brought before the Supreme Court, Appellate Division, Second Department, to determine, inter alia, the validity and extent of a hospital lien filed by defendant NYC Health and Hospitals Corporation.

On 7 November 1975, the Supreme Court, Kings County, issued an order which (1) denied plaintiff’s motion to strike defendant A Hospital Services’ affirmative defense that the action against it was barred by the contractual period of limitations contained in the applicable group insurance contract, and (2) granted that defendant’s cross motion for summary judgment.

Plaintiff appealed.

Published on: February 12, 2016

Petitioner Requests Probate of Will Pursuant to SCPA 1407

by Stephen Bilkis

This is an uncontested proceeding to probate a copy of the last will and testament of the decedent. The will is dated March 2, 1981, the original of which cannot be located; the decedent died April 4, 1981. The petitioner is the decedent’s daughter-in-law, the surviving spouse of the decedent’s post-deceased son. At the time of her death in 1981, the decedent’s only distributees were her son and her estranged spouse. She resided in a house owned by her estranged spouse. The decedent’s only asset was a home on the same block which was then occupied by the son and his family. The propounded instrument leaves the entire estate to her son. Petitioner alleges that after the decedent’s death, the son advised her that the decedent had left the residence in which they were residing to him. She also claims that she was not aware that any steps needed to be taken regarding the property until after the son’s death in April 2005, when she attempted to place the house on the market for sale.

A waiver and consent has been filed by the executor of the estate of the decedent, decedent’s estranged spouse who post-deceased the decedent. A renunciation and waiver and consent have also been filed by the son of petitioner and decedent’s son.

Pursuant to SCPA 1407, a lost or destroyed will or codicil may be admitted to probate only upon establishing: (1) that the will has not been revoked; (2) proper execution; and (3) the provisions of the missing will. It appears that the execution of the original instrument was supervised by an attorney permitting the inference that the statutory requirements were met (Matter of Spinello, 291 AD2d 406 [2002]), thus satisfying the requirement of proof of due execution. The court is further satisfied that the original instrument’s provisions have been established by a photocopy which is a true and complete copy of the original instrument as executed (SCPA 1407[3]).

Published on: November 24, 2014

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by Stephen Bilkis

A New York Probate Lawyer said the petitioner moves for summary judgment on her entitlement to take an elective share of the decedent’s estate pursuant to EPTL 5-1.1-A. In opposition, respondents, the coexecutors of the estate, argue the motion is premature as no discovery has been conducted, and there are material and triable issues of fact raised by their counterclaims and defenses.

A Kings Estate attorney said that respondents filed a verified answer alleging various affirmative defenses1 and counterclaims seeking to: (1) have the alleged marriage between the decedent and petitioner deemed null and void ab initio, and to annul the marriage nunc pro tunc; (2) dismiss the petition in its entirety; (3) vacate petitioner’s notice of election dated October 26, 2006; and (4) award the estate damages for the costs of this proceeding. Alternatively, if petitioner is not disqualified as a surviving spouse, they seek an award of compensatory damages equal to the elective share, plus interest and costs of the proceeding for the loss to the estate resulting from petitioner’s fraudulent conduct.

A New York Estate Lawyer said the decedent died on June 16, 2006, survived by two sons, the coexecutors herein, and four grandchildren from a prior marriage. Petitioner served as the decedent’s caretaker during the last decade of his life. The decedent’s will dated July 10, 1982, was admitted to probate on October 30, 2006. Letters testamentary were issued to the nominated coexecutors on that date. The decedent’s children and grandchildren were the sole beneficiaries under the will. The record reflects that a notice of election dated October 26, 2006 was timely filed by petitioner, and was properly served upon the coexecutors.

Published on: August 22, 2014

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by Stephen Bilkis

This is a probate matter which comes on by motion of petitioner following the suspension of a hearing pursuant to SCPA 1404 held at the law office of respondent’s attorney by agreement of the parties.

A New York Probate lawyer said that Petitioner requests three substantive orders related to the examination of witnesses before resuming the hearing: (1) to continue the hearing at the County Courthouse under the supervision of the Surrogate or other designee; (2) permission to question witnesses regarding events prior to the three-year period before the date the propounded instrument was executed; (3) that the witness and the attorney who drafted the decedent’s last three wills, fully produce all of his files relating to the three wills, the last of which is the propounded will, including files dated prior to the three-year period from the date the propounded instrument was executed.

Petitioner alleges that the decedent, who died on August 31, 2003, had made three wills, all with different or differing provisions as to the disbursement of his estate.

Published on: February 25, 2012

Interesting Will Jurisdiction Issue

by Stephen Bilkis

A son from California filed for an order dismissing the pending proceeding to probate his mother’s New York Will that raises an interesting question of jurisdiction. The son argues the jurisdiction of the court to prove the validity of the Will of a non-residence which requests New York to prove valid and invokes New York law on the ground that her French legal residency has assumed jurisdiction over her estate. The motion is opposed by the Petitioners in the proceeding, the co-executors named in the Will, who are presently serving as preliminary executors.

The mother who made the Will was born a French citizen in 1899, and she became a naturalized United States citizen. She was a New York resident for about thirty years. For approximately seven years she was employed in the law offices in New York City. During this period she worked as secretary to one of that firm’s senior partners. A lawyer-client relationship with that firm also commenced during that time. The French Ordinary Residence Card issued indicates that the mother who made the Will stated that she returned to France on October 24, 1971.

A New York Probate Lawyer said the Will which is the subject of the jurisdictional attack was drafted by the firm in New York she worked for. It was allegedly executed by the deceased in the firm’s Paris office in 1972, and there is no challenge on the matter. Both the petitioners and the son refer to the 1972 document as the New York Will. Both sides seemingly agree that this Will, whether admitted to be proven valid in New York or established in accordance with French law, governs at most the property of the deceased mother which was physically located in New York when she died, and that it does not affect property actually located in France, which passes under the French Will.

Published on: March 31, 2011

Estate Planning Changes Makes Gift Givers Regretful

by Stephen Bilkis

The Tax Act of 2010 put in to play a lot of changes for people, especially the wealthy, said a New York Estate Planning Lawyer. Those that had any significant wealth in their estate planning process wanted to make some donations before 2011. The initial tax on estate planning gifts was set to go up, but at the last minute President Obama signed an extension of the Act which allowed for lower tax rates for an additional two years.

While the Tax Act of 2010 has a lot of wealthy people breathing a sigh of relief, others aren’t so much. Those who followed estate planning advice and took advantage of the tax rates at 35% before 2011 are suddenly sorry they took that advice. While getting your gifts out ahead of the new tax law seemed smart, now it doesn’t. Before the Act was signed, they were allowed gifts of up to $1 million dollars without heavy taxation. After the Act and through 2012, that gift is $5 million dollars, said a New York Estate Planning Attorney.

Some gift givers feel like they were slighted and want their estate planning money back, so they can “re-do” the gift. Some feel like they gave it away too early, or might not have given it away if they had known the tax breaks would be extended. The NYork Estate Planning Lawyers and experts did not know that the President would be making an extension until shortly before it happened, well after they had already doled out advice to hundreds and thousands of people.

Published on: March 26, 2011

Estate battle heating up between family, a New York Estate Planning Lawyer explains

by Stephen Bilkis

Attempts to settle allegations between a 94-year-old’s new wife and the rest of his family have failed.

A lawsuit was filed against the San Antonio businessman’s new wife and a lawyer November 2009. The $15 millionaire died August 31, 2009 in his home. Family members have been asking questions that no one seems to know the answers to.

The dead businessman’s sister and her two children filed the suit after they found they would not receive any of their inheritance. Until several months after the man’s marriage, the man’s estate would have been divided between the three of them, expressed a New York Estate Planning Lawyer.

Published on: March 20, 2011

New Estate Planning Laws Seem Frivolous, Says a New York Estate Planning Lawyer

by Stephen Bilkis

There were some new estate planning laws that were recorded in the books just before the year 2010 ended, says a New York Estate Planning Lawyer. Some experts in the estate planning field say they are ridiculous and should be taken back off the books because they have a great potential to be abused. Then there are the people who think the new laws are fine and that with certain checks in place, they cannot be abused. So, what are these new estate planning laws?

The dollar amounts for certain tax rates were decreased substantially. The old limit was $1 million dollars or more and the person was taxed at a rate of 35%. The new limit is raised all the way up to $5 million dollars before the 35% tax rate has to be paid on the sum. A $4 million dollar increase means that people can leave their heirs a substantial amount of money and not have to worry over paying the taxes on it when they receive it, according to a New York Estate Planning Lawyer.

However, the new rules also state that this is temporary. Why? To give Americans a tax break during an economic crisis. The rules were made so that the government took less money in hopes that it would be circulated out in to the economy. Any boost in the economy is a good thing, even if it is one person shopping at a time. The temporary estate planning rule is good for 2011 and 2012, says a New York Estate Planning Lawyer. There is a chance that the rules could be extended out further if the economy still does not improve.