New York City

Published on: May 16, 2014

Court Discusses Action for Accounting

by Stephen Bilkis

A New York Probate Lawyer said this action for an accounting was commenced on August 14, 2009. In the first cause of action, the complainant seeks an accounting with respect to the affairs of a chain of stores. In the second cause of action, the complainant seeks an accounting with respect to the affairs of the real estate company. In the third cause of action, the complainant seeks a declaratory judgment that the mediation settlement agreement does not cover her claims for an accounting.

A New York Will Lawyer said the defendant woman moves to dismiss the complaint for lack of personal jurisdiction. She argues that the estate has no contacts with New York. Civil Practice Law Rules (CPLR) provides that a court may exercise personal jurisdiction over any non-domiciliary, or his executor or estate administrator, who in person or through an agent, transacts any business within the state as to a cause of action arising from the transaction of business. Prior to his demise, the decedent was involved in the management of all six of the partnerships. The complainants’ causes of action for an accounting relate to the properties located in Queens. Thus, the complainants’ causes of action for an accounting arise from activity carried on by the decedent in New York State. Moreover, the decedent had additional contact with New York by virtue of having received letters testamentary from the Nassau Surrogate’s Court. Since the decedent transacted business in New York, the court may exercise personal jurisdiction over his executrix with respect to a cause of action arising from the transaction. The defendant woman’s motion to dismiss for lack of personal jurisdiction is denied.

Brooklyn Probate Lawyers said the defendant woman argues that any claim asserted by the complainant pursuant to the receipt, release, and refunding agreement is barred by the one year time limit applicable to claims against the decedent’s estates in Massachusetts probate proceedings.

Published on: May 14, 2014

Court Decides if Accounting Fees Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, submitted for decision in this accounting proceeding are the issues of attorney fees and accounting fees. Also submitted is approval of commissions to the Public Administrator. The Public Administrator also asks for approval of the disallowance of the claim of the niece of the decedent’s wife for reimbursement of travel expenses to attend the decedent’s funeral. The Public Administrator also requests authorization to pay the net estate to the Nassau County Department of Social Services.

A New York Will Lawyer said that, the decedent died on January 7, 2004, a resident of Nassau County. Letters of administration issued to the Public Administrator on April 7, 2004. The decedent’s only distributees were a nephew, and a niece. This is the Public Administrator’s first and final account. The summary statement shows charges to the accounting party of $100,656.86.

A Nassau Probate Lawyer said that, the decedent’s wife, predeceased the decedent having died on November 22, 2002. Upon her death, she was indebted to the Nassau County Department of Social Services in the amount of $177,320.57. Pursuant to Section 104 (1) of the Social Services Law of the Estate of New York, the Nassau County Department of Social Services is entitled to recover the cost of the care given to the decedent’s spouse from the decedent’s estate.

Published on: May 13, 2014

The Issue in this Case is Whether Probate of the Will Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, before the court are two separate but related matters which were filed in connection with the estate of the decedent who died on July 15, 2003, leaving a last will and testament dated April 21, 1989. The will divides decedent’s residuary estate equally among her four adult children. One is the nominated executor under the terms of decedent’s will, but when the will was offered for probate, decedent’s other children objected to his appointment. On December 17, 2003, an agreement was reached by all parties in open court, pursuant to which the will was admitted to probate on March 1, 2004 and the Public Administrator of Nassau County was appointed as administrator, c.t.a.

A New York Will Lawyer said that, the first matter to be addressed is the petition filed by the Public Administrator, dated May 2, 2005, which asks the court to settle his account as administrator, c.t.a. and approve legal fees and a fee for the accountant for the Public Administrator. The petition further requests that the court approve fees for the attorney who represented the executor in his petition to serve as the nominated executor under the will, allow reimbursement of certain funeral expenses paid by the daughter, and approve the payment of commissions and distributions.

A Long Island Probate Lawyers said that, the second matter before the court is a motion brought by the counsel for the executor (son), as the nominated executor. Movant asks the court to award costs and attorney’s fees and impose sanctions on the other brothers, the objectants to the accounting, pursuant to Rules of the Chief Administrator of the Court, 22 NYCRR §130-1.1. Under this section, the court may award to any party or attorney the costs and attorney’s fees resulting from frivolous conduct and may impose financial sanctions. Neither brother have responded to the motion.

Published on: May 13, 2014

Court Rules on Petition for Letters of Administration

by Stephen Bilkis

A New York Probate Lawyer said that, this is an application for a certificate of letters of administration, which involves a question as to the status of the county treasurer as administrator, on which question there appears neither direct statutory provision nor decision directly in point.

A New York Will Lawyer said that, on June 23, 1960, the County Treasurer of Nassau County, was appointed administrator of this estate. On January 11, 1962, his term of office as county treasurer expired, and on February 5, 1962, the County treasurer, by his attorneys, requested a certificate of letters of administration in this estate.

A Brooklyn Probate Lawyers said that, on February 6, 1962, this court issued a decision in which it held that the present county treasurer, was interested in this matter, and directed that he be brought into this application. Subsequently, on February 9, 1962, the present county treasurer, by his attorney, filed a notice of appearance in which he opposed the issuance of the certificate of letters to the former treasurer and asserted that he, the present treasurer should be appointed successor administrator of this estate, and that he would petition for such appointment if the application of the former treasurer were denied. The application was submitted for determination, and both sides have submitted memoranda of law.

Published on: May 12, 2014

Court Asked to Rule on the Issue of Kinship

by Stephen Bilkis

A New York Probate Lawyer said that, in this accounting by the Public Administrator of Nassau County as administrator of the decedent’s estate, the issue of kinship was referred to a referee pursuant to SCPA 506. All parties stipulated to waive the report of the referee and to allow kinship issues to be decided by the court based upon the transcripts of the hearing, the documentary evidence and the arguments made by the attorney for the claimants and the guardian ad litem representing the interests of missing and unknown persons. Also before the court is the settlement of the Public Administrator’s account for the period from August 26, 2005 to August 31, 2007, as brought current through August 31, 2009, as well as the legal fees of the guardian ad litem. The guardian ad litem has filed a report dated April 23, 2010 in which she states that she has no objections to the account as brought current and which she finds to be complete. In her report, the guardian ad litem also makes certain conclusions regarding kinship that are discussed below.

A New York Will Lawyer said that, the decedent died intestate, a resident and domiciliary of Nassau County, on August 26, 2005. Letters of administration issued to the Public Administrator on October 7, 2005. The account, as brought down to date, shows total charges of $621,723.92, total credits of $147,469.51 and a balance on hand of $474,254.41. Objections to the account were filed by two individuals who claim to be distributees of the decedent. They objected to the Public Administrator’s request to distribute the net estate to the New York State Comptroller for the benefit of the decedent’s unknown distributees and asked for a hearing to establish kinship.

The issue in this case is whether the claimant’s objection to the Public Administrator’s request to distribute the net estate to the New York State Comptroller for the benefit of the decedent’s unknown distributees and asked for a hearing to establish kinship should be granted.

Published on: May 11, 2014

Petitioner Moves for Formal Accounting in Estate Litigation

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, died a resident of Nassau County on December 28, 2010, survived by his sister, the petitioner; and by his brothers respondent and movant herein, and. The decedent’s last will and testament dated May 23, 2000 was offered for probate by the petitioner, who is named as the sole beneficiary of the decedent’s residuary estate, as well as the executrix in the propounded instrument. Preliminary letters testamentary issued to the petitioner by order of this court on January 13, 2011. Respondent and the movant have filed objections to probate of the will.

A New York Will Lawyer said that, the disputes presently before the court all relate to a supermarket, which was run by the decedent and his brother. The supermarket, located at 601 Old Country Road in Plainview, New York, is comprised of three separate closely held corporations: (1) 601 Corp., which operates the grocery and dry goods business within the supermarket, and was owned by decedent and his brother as equal 50% shareholders; (2) Captain Joe’s Fish Corp. (Captain Joe’s), which sells fish and seafood at John’s Farms, and was owned by decedent and his brother as equal 50% shareholders; and (3) BNC, which operates a meat market within John’s Farms, which was owned wholly by decedent.

A Nassau County Probate Lawyers said that, the decedent’s sister commenced a SCPA 2103 discovery proceeding against respondents and the CPA as the accountant for John’s Farms, in order to, inter alia, prevent the decedent’s brother interference with the operation of BNC and to compel him to turn over the cash receipts of BNC from the date of the decedent’s death to the present; to prevent him interference with the petitioner’s right to take part in the management of Captain Joe’s and 601 Corp. and to gain full access to the records of those corporations; to compel the brother to make available to the petitioner the books and records of the decedent, BNC, 601 Corp. and Captain Joe’s; and to compel the brother to turn over the computer and other items he took from the decedent’s home.

Published on: May 10, 2014

Court Decide Issue of Estate Tax in Estate Case

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, died on January 4, 2006, survived by two children, the petitioners herein. A purported will dated July 16, 2003 and codicils dated September 29, 2004 and April 5, 2005 (herein collectively referred to as the “purported will”) have been offered for probate by respondents who are nominated as executors thereunder. By order dated April 5, 2006, A New preliminary letters testamentary issued to respondents. The purported will bequeaths the residuary estate to The Sunshine Foundation. The Sunshine Foundation is a charitable organization which was founded by the decedent during her lifetime. The preliminary executors are also the trustees of The Sunshine Foundation.

A Nassau Estate Administration Lawyer said that, at the time of her death, the decedent owned a 1% general partnership interest and a 50% limited partnership interest in Hewlett Associates. Article TENTH of the purported will provides as follows with respect to the decedent’s limited partnership interest in Hewlett Associates: “TENTH: If at the time of my death I own a limited partnership interest in Hewlett Associates, I direct that as soon after my death as may be practicable, my Executors (subject to the terms and conditions of the Partnership Agreement of Hewlett Associates) shall offer in writing (the “Offer”) to each of my children, the option to purchase for cash up to one-half (½) of said limited partnership interest that I may own at my death, at its value as finally fixed and determined for federal estate tax purposes after independent appraisal. If either such child desires to exercise his or her option to purchase said limited partnership interest, he or she shall notify the Executors in writing by certified mail, return receipt requested, within fifteen (15) days after the date of the Offer that he or she exercises his or her option to purchase said limited partnership interest. The closing of the purchase of said limited interest shall occur within sixty (60) days after the date of the Offer at a place designated by the Executors. If either of my said children shall not exercise his or her option to purchase all of his or her portion of said limited partnership interest, the other child may purchase the remaining portion, subject to the same terms and conditions set forth in this Article TENTH hereof.”

A Westchester County Will Lawyer said the decedent also created a revocable trust, under an agreement dated July 16, 2003, between herself as grantor and herself, respondents, as trustees. The trust provides that upon the grantor’s death, the remaining trust principal is to be paid over to The Sunshine Foundation. The decedent’s husband, died on May 4, 1990, leaving a will dated May 26, 1982, which was admitted to probate by this court on May 29, 1990. Under Article THIRD of the decedent’s husband will, a marital deduction trust was created for the benefit of his wife.

Published on: May 9, 2014

The Issue in this Case is Whether Petitioner’s Petition for Reconveyance Should be Granted.

by Stephen Bilkis

A New York Probate Lawyer said that, petitioners are who are, respectively, the suspended co-executor and the temporary co-administrators of the Estate of the decedent (hereinafter the estate). Respondent is the suspended co-executor of the estate. Petitioners commenced these proceedings to remove respondent as co-executor and to surcharge him for his self-dealing with respect to an estate asset consisting of a partial interest in a limited partnership known as North Shore Mart. Petitioners appeal and respondent cross-appeals from an order of Monroe County Surrogate’s Court, which, following a reference of factual issues on respondent’s accounting, confirmed the report of the referee and made additional determinations on issues not addressed by the referee.

A New York Will Lawyer said that, insofar as pertinent to this appeal, the Surrogate ordered respondent to reconvey to the estate administration a 36.4285% interest in North Shore Mart; ordered that such reconveyance be in the nature of a limited partnership interest rather than a general partnership interest or tenancy in common; denied the estate’s request for reconveyance of an additional 6.0715% interest in the partnership; awarded the estate a judgment of $1,152,645.82 plus interest, representing (after offset) the estate’s interest (36.4285%) in amounts diverted by respondent from the partnership to himself and his wife; denied without prejudice the estate’s claim to recover tax benefits (for partnership losses) that the estate would have realized but for respondent’s misappropriation of its interest in the partnership; denied the estate’s request to recover for the unnecessary interest expense incurred by the partnership as a result of his diversion of partnership assets; deferred the estate’s request for an award of attorney’s and accountant’s fees; denied the estate’s request for an award of punitive damages; denied the estate’s request for costs and disbursements; and ordered respondent to pay one-half of the referee’s fees.

A Long Island Probate Lawyer said that, on appeal the estate contends that it is entitled to reconveyance of a 42.5% interest in North Shore Mart; that such reconveyance must be in the form of a general partnership interest or tenancy in common; that it is entitled to a judgment equal to 42.5% of amounts diverted from the partnership by respondent; that the estate is entitled to other amounts, including a proportionate share of interest paid as a result of unnecessary borrowing by the partnership and compensation for tax benefits the estate would have realized but for respondent’s misappropriation; and that it is entitled to additional relief, including attorney’s and accountant’s fees, punitive damages, referee’s fees, and costs and disbursements. On his cross appeal, Saul challenges the Surrogate’s award to the estate of a money judgment and of an interest in the partnership at its present value.

Published on: May 8, 2014

Fraud Alleged in Will Contest Proceeding

by Stephen Bilkis

A New York Probate Lawyer said the complainant alleges that she, along with her father and sister are joint tenants with rights of survivorship in a brokerage account maintained at a Securities Company. The account at the Securities Company was transferred to a joint account in a Financial Services Company. The complainant alleges that the joint account assets were transferred without her authorization to an individual account in the name of her father. She contends that the joint account holders’ written transfer authorization contained her forged signature. Two years later, her father died. In her complaint, the complainant wants to recover her lawful share of the funds in the joint and individual accounts.

A New York Will Lawyer said the defendant sister filed a Petition in the Surrogate’s Court for the probate of the decedent’s Last Will and Testament. The complainant was cited in the probate proceeding because she was adversely affected by the Will. The complainant took nothing under the Will. The complainant filed Objections to Probate of the Will in June, 2008. After conducting documentary discovery concerning the Will, the sister and the complainant entered into a Settlement Agreement pursuant to which the complainant executed a Withdrawal of Objections to Probate and Consent to Probate. The County Surrogate’s Court then issued a Decree admitting the Will to probate and issued Letters Testamentary to the sister. The consideration passing to the complainant under the Settlement Agreement consisted of personal property with respect to which the complainant claimed ownership. The parties agreed that the consideration referenced in the Agreement satisfied any right that the complainant had to any bequest, legacy, or other entitlement to the property of the Decedent or the Estate, wherever located. The complainant waived an accounting. The parties executed mutual general releases.

Bronx Probate Lawyers said the general release that the complainant executed in favor of her sister individually and in her fiduciary capacity may not be changed orally. The sister-in her individual and fiduciary capacity-executed a mutual release in favor of the complainant. The parties to the Settlement Agreement also agreed that the County Surrogate’s Court shall retain continuing jurisdiction in order to carry out, construe and enforce any of the terms of the Agreement.

Published on: May 7, 2014

Court Addresses Calulation of Life Estate Interest

by Stephen Bilkis

A New York Probate Lawyer said the Incapacitated Person is 95 years of age, having been born on December 8, 1914. On March 1, 2004, he transferred his fee ownership interest in the Glen Head, New York real property in which he resided to his daughter, while retaining a life estate in same. Based upon the date of the transfer, this gift is beyond any applicable look-back period for purposes of determining Medicaid eligibility pursuant to the Deficit Reduction Act of 2005.

A New York Will Lawyer said the parties concede that it was the intention of the Incapacitated Person, with the consent of two of his grandsons (as heirs-at-law of the daughter), for the Incapacitated Person to remain in the real property for the balance of his lifetime. However, when his funds dwindled, his needs increased, and a third grandchild (who had declared bankruptcy) declined to authorize a reverse mortgage on such real property, the Guardians were left with no other option but to permanently relocate the Incapacitated Person to a skilled nursing facility. Thankfully, he has acclimated well despite his advanced age and severe dementia.

Following the relocation of the Incapacitated Person, the Guardian for the Property Management and the Co-Executors of the Estate of the daughter entered into a Contract of Sale to extinguish the life estate interest of the Incapacitated Person and to sell the real property to third parties for the price of $520,000.00. Based on the written appraisals of a New York State Certified Residential Real Estate Appraiser, spanning a period of NINE (9) MONTHS, the selling price is approximately $20,000.00 above the appraised market value.