New York Probate and Estate Administration Lawyer Blog

Published on: January 25, 2012

A conservator is a person appointed by court

by Stephen Bilkis

Ruth Bricker, Charles Ballon and the United States Trust Company submitted a counter-application regarding the preliminary letters sent to them for the last will and testament of Anna Lazarus. In the will submitted by Abraham Lautman to the court for probate, Mr. Lautman and United States Trust Company were named as executors. In their petition, Mr. Lautman’s eligibility to serve hold and oversee the assets of Ms. Lazarus is questioned. The company is agreeing to act alone and not together with Mr. Lautman.

From the information was obtained by a New York Probate Lawyer, United States Trust Company alleges a number of misconduct on Mr. Lautman’s part while acting as the decedent’s attorney-in-fact and co-conservator while she was alive. An attorney-in-fact is a person who is legally authorized to transact business-related transactions in behalf of another. A conservatorship is where a person is appointed by court to oversee and mange the financial affairs of a person who is considered as under a legal disability. It is also required that part of the financial accounting is submitted for review. It is said the Mr. Lautman did not submit his records to his co-conservators, including the documents and assets of Ms. Lazarus. He is also charged with preventing access to Ms. Lazarus’ apartment, drawing checks that are payable to himself or cash, and wrongful investment of funds owned by Ms. Lazarus in Great Britain.

The court if there is a good cause may reverse the instruction of a will to make a person an executor of the estate. In the preliminary letters issued, it is required that it is in its original form. This does not remove the court’s authority for a wise discretion in determining who will be part of the execution of the will. Nassau County Probate Lawyers said that leaving out a person named in a later will do not require a full hearing. It can be determined with affidavits as a basis or through a summary hearing. The court says that they prefer to avoid a contest within a contest. The legislature also wants an uncomplicated probate hearing. This is to save on cost and time for the court, and the parties concerned.

Published on: January 24, 2012

The decedent died a childless widow

by Stephen Bilkis

On December 20, 1952, the decedent died a childless widow. She left a supposed last will and testament that is dated April 29, 1929. This she tried to dispose of her estate and exercise a power of appointment granted to her by the will of her father. Another document dated September 13, 1929 was added and confirmed the April 29th will. According to a Staten Island Probate Lawyer, after a trial by jury both wills were denied probate. The reason given was that the testator lacked the capacity or competency to execute a will. She was not of sound mind. The Appellate Court also affirmed this decision.

The question now is if there was an error in the surrogate court to admit into evidence the statements of two witnesses, now deceased, in a prior lunacy proceeding. The Surrogate court relied on the Civil Practice Act that the statement of a deceased witness in a former trial or hearing may be used as evidence in a following hearing of the same subject-matter. The hearing for lunacy was presumptive. There was no other evidence so it was admissible but not conclusive.

This is the history obtained by a New York Probate Lawyer about the decedent . Her husband died in 1927, when she was 53 years old. Before long, she was showing erratic and distraught behavior. She was presenting abnormal habits and conduct, which included alcohol abuse. Her condition became so bad that between 1927 and 1929 she had been a voluntary patient at a mental hospital several times. Her condition still progressed and she was no longer able to take care of herself or her affairs. In September 24, 1929 she was admitted to a care facility as a voluntary patient because of this. She stayed there until she died 23 years later.

Published on: January 24, 2012

Court Rules on Excessive Gifts to Charity

by Stephen Bilkis

The decedent executed a will that left all her estate after taxes and fees to a Cemetery Association, a Fire Company, The American Cancer Society, a health association, and a society for the protection of homeless and dependent children. This constituted more than half of her estate.

If in case the will fails, a New York Probate Lawyer said that there will be twenty-nine first cousins who will be the beneficiaries. Three of these first cousins objected to the bequest to the charities. They cited law regarding the will contest for excessive bequests to charities. If their petition is granted any excess to half of the estate will be distributed to the cousins. The executors and the five charities appealed to dismiss the objection. The cousins objecting appeared before the court one with his separate counsel and the other two shared the same attorney.

To understand the Estates, Powers and Trusts Law regarding the excessive bequest to charity, one needs to determine first who can contest. The rule on contesting an excessive bequest to charity is that the person who is appealing against stands to gain pecuniary with a successful contest and that the bequest to charity is more than half of the estate. The law further supports it with the definition as to who these persons.

Published on: January 23, 2012

The probate decree allows this application to be made after the decree has been final.

by Stephen Bilkis

A proponent of a will, petitioned the court to charge the person objecting to the will personally. The probate decree allows this application to be made after the decree has been final.

A New York Probate Lawyer said that when a person files an objection to a last will and testament in good faith and with reasonable grounds, he is entitled to have his protest investigated without him bearing the cost. There was a previous case whereby the Appellate Court reversed a decision of a surrogate court for an objectant to be charged personally because there was some evidence that supported his objection to the lack of testamentary capacity and to negative bad faith. This was in the Coddington will.

Good faith is mainly reliant on whether there is a considerable basis for a contest of a will. The court cited some examples, like with the Kurowski’s will, where the court charge the cost of the contest personally to the objectant because she had a sworn data that validates the will she is contesting. The Roger’s estate was mentioned by Manhattan Probate Lawyers because the court assigned the cost to the person who contested because there was no evidence to support his claim. This is not the sole basis for imposing the cost to an unsuccessful contestant.

Published on: January 23, 2012

Court Rules on Will Contest Matter

by Stephen Bilkis

The petitioner filed an appeal with the Surrogate Court to require payment of a legacy. Ms. Schlanger was to receive 4% of the remaining estate after taxes and fees of the decedent. She claims that if the part, which is $10,000, is not paid to her account most likely she will not be able to enjoy any of it. She is saying she is old and needs the legacy. A New York Probate Lawyer mentioned that the petitioner said the other beneficiaries have received their legacies.

The answer given by the executor of decedent’s estate is that the petitioner in not entitled to be paid because she violated the terrorem clause of the last will and testament. The will stated in the sixth paragraph of the will that if any of the beneficiaries or people mentioned in her will contests or does an act to contest the will, they will forfeit their right the bequest. It further states that if they testify against the probate of the will, then they will lose their right to the legacy. Their part will be, in effect, put back to the remaining interest and shared by the other recipients.

In the response, it is alleged that the petitioner violated in two ways. She tried to have the decedent declared incompetent when she was still alive. This was the first instance. The second instance is in the probate proceedings, where even if she did not appear to contest herself, she conspired with another to have the will disallowed. This, said a New York Will Contest Lawyer can be considered as a violation to the terrorem clause.

Published on: January 22, 2012

Court Rules on Will Contest Proceeding

by Stephen Bilkis

In the matter of a decedent’s estate, his daughter had filed a motion for the court to wait on admission of a decision regarding the probate of the last will and testament. She also asked for a time extension to file objections and time to be able to examine the proponent and for an interpretation of the effect of the terrorem clause or no-contest clause that is included in the will.

On the return day of the hearing for the original matter, the daughter showed and the proponent was directed to change the petition because the adoptive daughter of the decedent’s predeceased son was not mentioned. More data that a New York Probate Lawyer obtained was the daughter was not served with the supplemental citation and is claiming she only received a day’s notice that a decree on the admission of the will to probate is going to be presented to the court. The daughter got an immediate order to show cause to wait in making a decision on the decree.

The daughter had checked witnesses who are verifying the proposed will and now wants to examine the proponent of the will. Her allegation was that the son of the testator, who is also an attorney at law, acted as the decedent’s attorney, and the will being executed in his office. Further, she is claiming that the provisions of the will were altered to assign other benefits to the proponent and his family at her expense. Suffolk County Probate Lawyers cited that the daughter was as well saying that her father was 80 years old at the execution of the will and was relying on other for his physical needs.

Published on: January 22, 2012

It is a sad occurrence when children are orphaned by both parents

by Stephen Bilkis

It is a sad occurrence when children are orphaned by both parents in a very short span of time. This is what happened when a modern painter of high reputation, died on February 25, 1970 followed by his wife on August 26, 1970. They left two children. The daughter was already of age and the son Christopher was still a minor. Before the mother died, she already gave the court her petition to contest the will as the children’s guardian saying the bequest to the charitable institution was more than one-half of the estate.

The term of the will, from what a Nassau County Estate Administration Lawyer found was that the wife gets $250,000 plus their house and all its contents. Five of his paintings are to be given to the Tate Gallery, London. The remaining part of his estate is bequeathed to an art foundation, a non-profit organization. It contained additional stipulation where if his wife dies, or they subsequently die, their children get $250,000 and the house in New York, including all its contents in equal shares.

The executors still followed through with the proceedings to determine if the claim for the will contest is valid. The daughter appeared with her lawyer and the son with his guardian. The court has found out the paintings of the testator is valued at several millions of dollars. There is another court hearing in which the contract executed for one-eighth of the decedents works was valued at $1,800,000 was still being contested as not enough. The court has said it is definitely more than half of the residuary estate of the testator that was assigned to charity. A Nassau County Estate Litigation Lawyer said the court gave out is a decision in favor of the children on July 13, 1970.

Published on: January 21, 2012

Court Rules on Will Contest between Siblings

by Stephen Bilkis

A woman died in June 1994. She left a last will and testament dated May, 25 1990. This will contain conditions in the bequest that favored her daughter. In the will, a New York Probate Lawyer said, it gave 50% of the remaining estate after taxes and fees to Mrs. Ellis daughter and the remainder is divided equally between her two sons. One would think it is unfair for the mother to do this, but with their history, you would understand why.

The previous will had the children sharing the estate equally, but after the woman’s husband died the sons’ relationship with their mother got worse and with her daughter better. There was even a letter sent by one son to his sister that accused her of scheming to distance the mother from her sons. This was in March 1980. He even went as far as demand to have the old will reinstated and that the mother should not help the daughter financially unless there is proof that she needs it. He stated in his letter that if his demand is granted, then he will not publicize the issue. The son threatened to file a court case if what he wants is not done. In an undated letter to his brother, he said the “estate would be in court so long that the daughter would never see any of the money.”

In May 1990, she executed the will submitted for probate. Aside from the provision she placed in favor of her daughter, she added that her will is based on the “loving care and attention” her daughter has showed her and her late husband, unlike the behavior their sons showed. She said the will is a product of a long and careful thought and was not because of undue influence from the daughter. Furthermore, in June 1993, she approached a new lawyer to draft a new will for her so that she could continue to express her desire to give the majority of her estate to the daughter. The information a Bronx Probate Lawyers gathered said she was afraid her sons will cause trouble for her daughter. This is when the terrorem clause was added wherein if any of the beneficiaries directly or indirectly contest the will or any of its conditions, their right to their share in the estate is revoked, and that share will be divided between the remaining parties who have not contested.

Published on: January 21, 2012

Probate Court Rules on No Contest Clause

by Stephen Bilkis

In February 14, 1980, the will of decedent was contested by her daughter. The decedent died in January 11, 1980, and the will questioned is dated December 1, 1979. In the dececent’s last will and testament, she bequeathed all her property to five charities. There is a gift of Israeli bonds to the State of Israel. The will also stated that her daughter receives no part of her estate as she had adequately provided for her in her lifetime.

The will further specifies that in case that the will fails and becomes useless all the property will go to her trustees. In conformance to the trust agreement that she has set up while she was alive. The inter vivos trust was also set on the same date of the will. The paperwork says that the trust will be funded if in any case that the gift, devise or legacy made under the last will and testament made by decedent will be ineffective. The trustees on the document are the same people named as executors of her will. Meaning, the trustees will give the income from the fund to the same charities she has named in her will, says a New York Probate Lawyer. After five years, the charities then will receive the principal divided equally between them.

Ms. Lippner’s will included a “no contest” clause. From the records, it specifically stated that any person who will contest the will, it does not matter what reason will lose the right to any part of the estate which, would have been theirs. Aside from these papers documenting litigation between the petitioner and her daughter, were attached. It had the history of the litigation to show that Ms. Epstein, although the only descendant was really intended to be excluded from the estate distribution.

Published on: January 20, 2012

Court Rules on a Will Contest Regarding Charitable Donation

by Stephen Bilkis

On June 28, 1975, the decent died in West Monroe. He left a last will and testament dated November 27, 1972. The will was submitted to probate in November 1, 1977 and letters were issued to an executor of the estate and sole descendant. Prior to the settlement of the affairs, the executor died. This was November 5, 1981. In January 15, 1982, the nephew of the decedent petitioned the court for letters of administration. A New York Probate Lawyer said that the court granted this petition in January 19, 1982.

In January 7, 1983, the petitioner asked the court to rule on whether the decedent exercised his personal right under the excessive gift to charity. By May 4, 1983, a hearing was held to present evidence.

The decedent, upon the death of his mother contacted a lawyer regarding some of the provisions in his mother’s will. From the information a Nassau County Probate Lawyer got, the petitioner also asked if these certain stipulations in his mother’s will can be broken. Petitioner expressed his discontent with his mother’s will especially in the paragraph that allocates any remaining estate to be given to a hospital. The hospital at the time of the decedent’s death was non-existent. In a letter dated January 12, 1982 from an attorney for the Hospital Planning Association, it was said that the the hospital was never created and will never be created.