In New York, a personal representative is a person who is appointed by the Surrogate’s Court to manage the affairs of a deceased person’s estate. This individual is responsible for handling the deceased’s assets, paying debts, and distributing the remaining assets to the heirs or beneficiaries of the estate. The personal representative can either be an executor, named in the deceased’s will, or an administrator, appointed by the court if no will exists. The personal representative has a fiduciary duty to act in the best interests of the estate and its beneficiaries.
The case involves the estate of Howard Rothenberg, who passed away in 2016. Rothenberg was survived by his wife, Barbara, and two sons, Marc and David. Rothenberg’s will left his entire estate to his wife, but included a provision that stated that if she predeceased him, the estate should be divided equally between his sons. However, Barbara did not predecease the decedent.
In 2018, Barbara Rothenberg passed away. Her estate was worth approximately $1.4 million. After her death, Marc and David Rothenberg filed a petition with the Surrogate’s Court, seeking to have their father’s estate distributed to them in equal shares, as per the language in his will. However, the executor of Howard Rothenberg’s estate, Merrill Lynch Trust Company, argued that the will did not provide for the sons to receive a share of the estate in this situation.
The issue in the case was whether the sons were entitled to receive a share of Howard Rothenberg’s estate following the death of their mother. The key question was whether the language of the will was clear enough to create a trust for the benefit of the sons, as they claimed.
The court looked at the specific language in the will and considered the context in which it was written. The relevant portion of the will stated: “In the event my spouse predeceases me or dies as a result of a common accident, then I give, devise and bequeath all of my property…to my children, (Marc and David Rothenberg), in equal shares.”
The court noted that the language of the will did not specifically create a trust for the benefit of the sons. However, it also found that the language was not clear enough to preclude the sons from receiving a share of the estate in this situation.
The court noted that there were several factors that supported the sons’ argument that the will created a trust. First, the will stated that the estate would pass to the sons “in the event” that their mother predeceased their father. This language implied that there was a contingency in place, which could be seen as a trust provision.
Second, the will used the phrase “give, devise, and bequeath,” which is often used in the context of a trust. The court noted that this phrase indicates an intent to create a legal obligation to transfer the property, which could be interpreted as a trust.
Finally, the court considered the fact that the will was drafted by an attorney. The court noted that the attorney would have been familiar with the rules and requirements for creating a trust and would have used specific language if that was the intention.
Taking all of these factors into account, the court concluded that the will did create a trust for the benefit of the sons. The court noted that the language of the will was not clear, but that it was also not ambiguous enough to preclude the sons from receiving a share of the estate.
The court ordered that the estate be distributed to the sons in equal shares, as per the language in the will. The court also awarded the sons their legal fees and costs, as they were successful in their petition.
The case highlights the importance of carefully considering the language used in a will. While the court ultimately found that the will created a trust for the benefit of the sons, the language used in the will was not clear and could have been interpreted differently.