New York Probate and Estate Administration Lawyer Blog

Published on: March 15, 2021

Father who failed to support child is not an intestate heir of child. In re Lee, 2021 NY Slip Op 30984(U) (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

When a person dies without a will, they would have died intestate. When this happens, their estate is distributed according to New York’s law of intestate succession to those who are considered the decedent’s next of kin. Typically, this means that the decedent’s surviving spouse and children would inherit. In the absence of either, the decedent’s parents would inherit.

Because minors do not have the capacity to execute wills, when a minor passes away, their parents are typically first in line to inherit unless they are disqualified. Under New York law, on petition, a parent can be disqualified from inheriting if they failed to support the child. Under Family Law Act § 413, parents have an obligation to support their children.

In the case of In re Lee, the decedent was 14-years-old when she died by suicide. She left an estate. It is unclear how much her estate was worth or how the decedent received the property in her estate. She was survived by her divorced parents. Her mother, the custodial parents, was appointed the administrator of the decedent’s estate. The mother filed a disqualification petition to prevent the decedent’s father from being named an intestate heir and inheriting from the decedent’s estate. The father opposed the disqualification petition on the ground that he was unable to pay more support than he did.

Published on: March 1, 2021

Medical records raise questions of the reliability of witness testimony in a testamentary capacity case. In re Ramirez, 68 Misc.3d 1207(A) (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

Under New York law, for a will to be valid, the person making the will, known as the testator, must have been of “sound mind and memory” at the time the will was executed. Testamentary capacity refers to the mental ability of the testator to understand the meaning and impact of signing a will.

In In re Ramirez, the will of decedent Ulysses Ramirez was submitted for probate by his surviving spouse, Francesca. Francesca was Ulysses’ fourth wife. He was also survived by 2 adults sons from prior marriages, David and Mikhail. The decedent died on April 23, 2018, less than a year after he met Francesca. At the time he met Francesca, he was being treated for terminal prostate cancer. About 7 months after he met Francesca, Ulysses left the home he was living in with Mikhail and moved in with Francesca. Francesca and Ulysses were married in December 2017. He executed a new will on April 14, 2018, leaving all his property to Francesca and naming her the executor. The estate included his condominium where his son Mikhail lived, worth around $750,000. He died shortly thereafter. A will contest was initiated based on a number of reasons, including lack of testimony capacity.

The objectors cited several irregularities surrounding the execution of the new will. The will was prepared based by Francesca’s personal attorney who never met or spoke with Ulysses and who lived 350 miles away. The attorney drafted the will and a power of attorney based on the instructions from Francesca that she provided via text messages. Francesca’s neighbor, Karen, and her neighbor’s son, Alexander, were the witnesses.

Published on: February 1, 2021

Father who failed to support child is not an intestate heir of child. Matter of Gonzalez, 196 Misc.2d 984 (N.Y. Surr. Ct. 2003)

by Stephen Bilkis

A last will and testament allows a testator to specific who will receive their property upon death. It is an effective way to ensure you’re your property goes to who you want to receive it. However, many people do not leave wills, dying intestate. As result, New York’s law of intestate succession applies and dictates who gets the property in the decedent’s estate. The surviving spouse and children, if any, would be entitled to inherit. In the absence of either, the decedent’s parents would be next in line to inherit, followed by siblings.

In Gonzalez, the 27-year-old decedent died in the World Trade Center on September 11, 2001. She was survived by her father, sister, and brother. The brother and sister applied for letters of administration. Separately, the father did as well. The brother and sister petitioned the court for summary judgment granting their petition for the issuance of letters of administration. Their request for summary judgment also requested that the court dismissed the decedent’s father’s petition despite the fact that the father was the decedent’s presumptive distributee.

The petitioners argued that the father is disqualified from inheriting because he failed to or refused to provide for her or that he abandoned her. As a result, under EPTL 4-1.1 her estate should be distributed as if the father had predeceased the decedent. That would mean that the petitioners would be her distributees.

Published on: January 18, 2021

Surrogate’s Court considered whether a Military Testamentary Instrument should be admitted to probate. In re Johnson, 69 Misc.3d 357 (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

A military testamentary instrument is sometimes called a “military will.” It is a last will and testament as described by federal statute 10 USCS § 1044d. It can be executed only by or on behalf of a person who is eligible for military legal assistance. Like any other type of will, for a military testamentary instrument to valid, certain formalities must have been present at the time it was executed. It must be executed by the testator in the presence of a military legal assistance counsel acting as presiding attorney and in the presence of two witnesses. Like a will, it takes effect upon the death of the testator. It has the same effect as a will that was prepared and executed according to the laws of the state in which it is presented for probate.

In In re Johnson, the wife of decedent Johnson filed a petition for probate along with a military testamentary instrument purporting to be Johnson’s last will and testament. For an instrument to be admitted to probate, the general rule is that it is up to the proponent to prove that the document complies with the requirements of New York law. Under EPTL § 3-2.1(a), for a will to be valid, the requirements are:

The testator must have signed the instrument at its end

Published on: January 4, 2021

Claim against estate dismissed for jurisdictional reasons- Dubois v. Beaury, 1:20-CV-86 (FJS/CFH) (N.D.N.Y. Nov. 30, 2020)

by Stephen Bilkis

In this case, the United States District Court, N.D. New York considered whether the plaintiff could proceed with a lawsuit against a decedent’s estate. The decedent had lived in New York State for many decades and had even served as the Superintendent of the Division of State Police. However, the decedent died in Conyers, Georgia in May 2019 and had been a resident of Georgia since 2012. Despite this, plaintiff filed a lawsuit in New York against the decedent’s estate.

Under New York law, an estate is not an entity that can be sued. Any action against an estate must be brought against the person or entity named as administrator of the estate. At the time of the lawsuit, no one had been appointed to serve as administrator of the decedent’s estate.

The plaintiff sought to appoint a public administrator of the decedent’s estate. Under N.Y. Surr. Ct. Proc. Act Law § 1002(1)), in case of intestate estates, New York allows any interested party to petition the court to grant letters of administration to the party named in the petition. Even though the widow of the decedent had the right to be appointed administrator, she has not sought such appointment and seemed to indicate that she did not wish to be appointed. The plaintiff pointed out that under the New York Surrogate’s Court Procedure Act, a public administrator can be appointed if no one who had a greater right to be appointed is available or willing to serve as administrator.

Published on: July 27, 2020

Court concluded that no undue influence existed. Kotsones v. Kreopolides, 185 A.D.3d 1473 (N.Y. App. Div. 2020)

by Stephen Bilkis

The proponents of the will are children of the decedent. When they sought to have the decedent’s will admitted to probate, an objection was filed on the grounds that the will had been procured by the proponent’s exerting undue influence over the decedent.

Undue influence exists when someone uses their position of trust with respect to a testator to illegally influence the testator to create a will they would not have otherwise made. Oftentimes undue influence occurs when the testator is vulnerable due to failing physical health or mental decline. In almost every case, the person who exerts the undue influence is a position of trust with respect to the testator such as being their caregiver or financial advisor. In fact, in Kotsones, the court cites Blase v. Blase, 148 A.D.3d 1777 (2017) by noting that it has been established that “where there was a confidential or fiduciary relationship between the beneficiary and the decedent, [a]n inference of undue influence arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction.”

The court noted that for a relationship to be confidential, there must be inequality in the relationship as well as a controlling influence. In other words, for there to be a confidential relationship that would allow for inference of undue influence, the circumstances must be such that the parties are not able to deal on terms of equality.

Published on: April 20, 2020

Supreme Court Considered Whether a Wife’s Claim for Support Survives Her Death- Dean v. Dean, 2020 NY Slip Op 20042 (N.Y. Sup. Ct. 2020)

by Stephen Bilkis

In this case the Supreme Court considered whether a wife’s claim for spousal support survives her death and can be continued by her estate. It is not unusual for a divorce proceeding to stretch out over a number of years as the parties are not able to agree on various issues. However, in this case the couple never was able to reach a settlement and receive a judgment of divorce. Instead, the marriage ended with the death of the wife while the divorce was still pending.

The history of this unusual case is that the couple was in the middle of a divorce proceeding that was initiated 6 years ago when the court converted the pending divorce action to a proceeding for spousal support under Article 4 of the Family Court Act. While that proceeding was pending, the wife, who had been living in a nursing home after suffering a debilitating health crisis, died. The wife’s estate, through her executor, now seeks to continue the spousal support proceeding against the husband, thus converting the case to an estate litigation matter. The husband objects arguing that the wife’s claim for spousal support abated when the divorce proceeding ended.

The law of abatement is that for most actions abatement occurs upon the death of one of the parties if the issue involved in the case is personal in nature or involves the personal status of a party. A marriage and divorce are certainly personal matters. The marriage terminates upon the death of a party and the divorce action abates because there is no longer a marriage to dissolve. Because matters of spousal support are ancillary to a divorce action, they also abate upon the abatement of the divorce action. Thus, if this spousal support action was ancillary to the couple’s divorce, the husband would be correct in that the action would have abated. That is not the case here

Published on: April 13, 2020

Claim Against Estate Barred Due to Statute of Limitations- In re Hollis, 2020 NY Slip Op 860 (N.Y. App. Div. 2020)

by Stephen Bilkis

In this case the Appellant Division considered whether a claim against an estate was time barred.

The decedent, J. Hollis, died in October 2015. She was survived by six children. The decedent’s will had a specific provision related what should be done if any of her children owed her money at the time of her death. The provision provided that any money owed was to be deducted from that child’s inheritance.

Hollis, one of the decedent’s children, died three months later, in January 2016. His wife, B. Hollis was appointed the administrator of his estate. The executor of the estate of J. Hollis filed a claim against the estate of P. Hollis for $147,265.35, representing loans J. Hollis made to P. Hollis from 2005 to 2011, as one of the duties of an executor is collecting debts owed to the estate. From the opinion it is not clear whether P. Hollis had received a distribution from his mother’s estate. However, B. Hollis filed a motion for summary judgment disallowing so much of Peter’s claim as represented money purportedly borrowed by the decedent between April 2005 and January 2008 on the ground that recovery was barred by the six-year statute of limitations. Part of the estate administration process is to pay debts owed by the estate and settle claims against the estate.

Published on: April 6, 2020

Non-Marital Child Does Not Have Standing to Object to Probate- In re Prob. Proceeding of Mengoni, 2020 NY Slip Op 30728(U) (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

In a contested probate case, the court considered whether an objectant had standing to participate in the probate proceeding based on a claim of being the child of the decedent.

Th decedent died in February of 2018, leaving a substantial estate. A petition to probate a purported will of decedent dated January 11, 2017 was filed by the decedent’s attorney and the drafter of the will. The will named him as the executor. The petitioner, A. Mengoni, among others, was named as an interested party as she was identified as an alleged daughter of decedent. The instant litigation was commenced when A. Mengoni filed objections to the will. The proponent of the will, decedent’s attorney and nominated executor, filed a motion to strike A. Mengoni ‘s appearance and dismiss her objections.

New York law requires that in order to participate in a probate proceeding, you must have standing to do so. Generally, only those who are named in a will as beneficiaries and the intestate heirs of a decedent have standing. Also, anyone who was a beneficiary of a prior will and would be adversely affected if the propounded will is probated would also have standing according to Surr. Ct. Proc. Act. Section 1410. In this case, A. Mengoni is basing her standing on being the child of the decedent, making her an intestate heir.

Published on: March 30, 2020

Motion for Standing as a Person Adversely Affected by Probating a Will- In re Prob. Proceeding for the Estate of Wilke, 2019 NY Slip Op 51220(U) (N.Y. Surr. Ct. 2019)

by Stephen Bilkis

In this case the Surrogate’s Court, Albany County, considered whether an individual had standing to object to probating a will based on having been named as a beneficiary in a prior will pursuant to pursuant to Surr. Ct. Proc. Act § 1410.

Before a person can become a party to a proceeding to probate a will the person must have legal standing. “Standing” means that the person has an interest in the outcome of the probate proceeding. Typically, those who have standing are limited to anyone who is mentioned in the will as a beneficiary or those who are intestate heirs of the decedent.

In this case the petitioner, R. Smith, who is not a beneficiary of the will submitted for probate and who is not an intestate heir of the decedent, is a beneficiary of a prior will. Smith intends to the object to the probate of the will already submitted, but first the Surrogate’s Court must consider Smith’s motion for standing as a person adversely affected by the admission into probate of the will.