New York City

Published on: November 5, 2012

Petitioner Challenged Bequest of Retirement Account

by Stephen Bilkis

This case is being heard in the Supreme Court of the State of New York, Appellate Division, and Second Department. A New York Probate Lawyer said this is an appeal made by the petitioners of the matter. The petitioners are appealing an order that was made in the Surrogates Court of Queens County. The order denied their motion for summary judgment on their petition and determined that the bequest of a certain retirement account to others.

Court Discussion and Decision

The petitioner’s contend that the Surrogates court made an error in finding that the bequest was a specific bequest. However, this contention is contrary to the findings made in this court. The subject bequest was reviewed by this court and it is found that the Surrogate’s court made the correct decision in this matter.

Published on: November 4, 2012

Executor Petitions for Judicial Settlement

by Stephen Bilkis

This is a case being heard in the Second Judicial Department of the Supreme Court of the State of New York, Appellate Division. The case is a probate proceeding where the executor of the estate petitioned for judicial settlement of the decedent’s estate. A New York Probate Lawyer said the objectant is appealing an order made in the Surrogates Court of Queens County that granted the motion for summary judgment by the petitioner to have the objections dismissed. The order that judicially settled the account, made by the same court, is also being appealed.

Court Discussion and Decision

The court is ordering that the appeals be dismissed with all costs payable by the appellant personally.

Published on: November 3, 2012

Court Looks at the Intent of the Decedent

by Stephen Bilkis

Establishing the jurisdiction that will handle a probate action in a New York Probate Court sometimes requires the knowledge of the decedent’s entire residential history. Just because a person dies in one county does not mean that the probate should be handled by that county. Probate in New York Law is handled by the jurisdiction that the decedent lived in for the ending years of their life. A New York Probate Lawyer said that address must be a voluntary residence and not necessarily a nursing home or hospice where the person resided toward the end of their lives. In New York law, it is referred to as a domicile. A domicile is existing until a new one is set up. A person moves from one domicile to another throughout their lives. The primary element in establishing a domicile is intent. Sometimes, the evaluation of residential change and intent to move can be blurry.

In one case, a woman who was born in Odessa, Russia in 1898, moved to Brooklyn, New York sometime around 1911. She was married and lived as an American citizen for the remainder of her life. She and her husband purchased a home on Beaumont Street in Manhattan Beach in Brooklyn, New York shortly after their marriage. They lived in that house and raised their family to adulthood in that house. In 1989, she began to have medical problems. During that year and the one that followed, she spent most of her time in hospitals or nursing homes. On December 6, 1990, she was a resident patient at Beth Israel Hospital in Manhattan. She died on that date. For three months before she died she had lived in a nursing home in Bronx County.

Her family had sold her home in Manhattan Beach during her long illness. The court was required to determine if she was considered a resident of Bronx County or a resident of Brooklyn. An additional complication was that she died in Manhattan. The court must evaluate which county was the woman’s domicile at the time of her death. They determined that it would not be appropriate to determine that she was a resident of Manhattan since her stay there was too short. A Westchester County Probate Lawyer said the question remains as to whether she has a domicile in the Bronx, or Brooklyn. The argument that is most important in this particular case involves that of intent. Did the woman have the intent to sell her lifelong domicile in Brooklyn and establish a new domicile in the Bronx prior to her death? The court must try to determine what the woman’s intent was at the time that her home was sold.

Published on: November 2, 2012

Court Finds Executors Pay Excessive

by Stephen Bilkis

This is a case being heard in the Surrogate’s Court of Queens County. The court has started this proceeding in regard to its own administrative rule that requires an account to be filed within a year of the date a fiduciary is appointed who is also an attorney.

Case Background

In this case the attorney/fiduciary was ordered to file an accounting with this court no later than one year after the date of the decree and failure to do so will result in the letters being revoked. The executor has filed his account within the set time limit.

Published on: November 1, 2012

Petitioner Claims Will Not Valid

by Stephen Bilkis

An instrument alleged to have been executed in December of 1955 by the decedent is being offered for probate in the Surrogate’s Court of Queens County. The instrument names an executor and an attorney and draftsman as well.

Case Background

The decedent passed away in April of 1957. She was survived by her sister to whom she left $500 and the right to be buried in her plot. The decedent left $200 to a former employee. The rest was given to a “dear friend.” The estate has an estimated worth of $5,500.

Published on: October 31, 2012

Action Brought to Foreclose on Property

by Stephen Bilkis

The case deals with the estate of the decedent of which the distributees are unknown. The Supreme Court of the State of New York in Suffolk County is overseeing this particular matter.

Case Background

This action was commenced to foreclose a mortgage on real property located at 83 Orange Street, Central Islip, New York. The plaintiff filed a summons and complaint regarding this matter on the 14th of June, 2011.

Published on: October 31, 2012

Respondent Filed a Petition for Letters

by Stephen Bilkis

This case is being heard in the Second Department, Appellate Division, of the Supreme Court of the State of New York. The appeal in this case involves an application made by the administratrix of an estate to disqualify the attorney as her co-administrator. The attorney previously represented both parties but was dismissed by the petitioner when he participated in the prosecution of a compulsory accounting proceeding trying to surcharge her. The Surrogate’s Court of Queens County ruled that the allegations made by the petitioner were insufficient to warrant disqualification.

Case Background

The decedent passed away on the 28th of March, 1979. The respondent acting as the attorney for the estate filed a petition for letters of administration on behalf of the decedent’s widow and his son of a previous marriage.

Published on: October 30, 2012

Siblings Fight Over Deceased Parent’s Bank Accounts

by Stephen Bilkis

This is a case being heard in the First Department, Appellate Division, of the Supreme Court. This issue being appealed in this case is whether the petitioner, who is the son of the decedent and the ancillary executor of the estate, has overcome the presumption that certain joint bank accounts that were established by the decedent were intended to vest property rights to his sister who is named as the joint account holder, which would constitute testamentary substitutes that would pass outside of the will.

Case Background

There are five joint bank accounts at issue in this proceeding out of a total of 16 accounts that were opened by the decedent. Of the total of 16 accounts, eight of the accounts have her daughter designated as the joint tenant. A New York Probate Lawyer said the amount of these accounts comes to $216,842. The other eight accounts designate the petitioner as the joint tenant and amount to $223,782.

Published on: October 29, 2012

Court Revokes Commissions Collected by Executor

by Stephen Bilkis

This is a decision made in the Surrogate’s Court of the State of New York in Nassau County after a bench trial of the accounting of the executor of the estate. Before the trial the objectant by an order to show cause sough the revocation of letters testamentary that were issued to the executor. The application has been held in abeyance pending the trial of the accounting of the estate.

Case Facts

The decedent passed away on the first of May, 2004 and left behind a will that was admitted for probate. The decedent was survived by four children. The will bequests pre-residuary cash payments in the amount of $45,000 to three of his children. The will divides the residuary estate equally among all four children. Letters testamentary were issued to the oldest child as he was named as the executor of the estate.

Published on: October 28, 2012

Son Challenges Father’s Will

by Stephen Bilkis

In this case the defendant has moved for an order to dismiss the first and third causes of action brought against them on the ground of failure to state a cause of action. The defendant is seeking to have the remaining caused transferred from the Supreme Court, Special Term, to the Surrogate’s Court of Queens County on the ground that it is the more appropriate forum for this action.

Case Background

A New York Probate Lawyer said the plaintiff is seeking to recover half of $80,285.58 that he alleges is his property by reason of establishment of a number of bank accounts by his late father. He states the accounts were in his and his father’s names. The son’s name was eliminated from the accounts in question in June of 1983. The father then opened new accounts in just his name with the proceeds of the accounts that he had closed.