New York Probate and Estate Administration Lawyer Blog

Published on: November 8, 2019

Executor Removed for Failure to Follow Order of the Court – In re Delaney, 2018 NY Slip Op 32755(U) (N.Y. Surr. Ct. 2018)

by Stephen Bilkis

When a testator nominates someone to serve as the executor of his (or her) estate, the court does everything possible to fulfill the wishes of the testator by appointing that person. Courts are loathe to substitute their judgement for that of the testator. However, if the court determines that the executor nominated by the testator is not qualified or does not fulfill the duties of the job as required by law, it has the authority to decline to appoint the person as executor or to remove that person.

In Delaney, the decedent, H. Frankowski, died in 2013 leaving three children: J. Frankowski, A. Porter, and S. Roman. J. Frankowski was appointed executor of H. Frankowski’s estate. When J. Frankowski died in 2014, the Surrogate’s Court appointed A. Porter as successor executor. There were some irregularities related to the decisions that A. Porter made as executor. As a result, on May 18, 2015, the Surrogate’s Court suspended A. Porter as successor executor and ordered that she no longer make any distributions from H. Frankowski’s estate. However, the next month, on June 24, 2015, the Surrogate’s Court issued another order reinstating A. Porter. While she was given essentially the same authority as she had previously, the court restricted the amount of money that she could distribute from the estate to a maximum of $50,000.

A. Porter filed an accounting that included disbursements that she made after May 18, 2015 amounting to $198,668.31. In response, the petitioner, K. Delaney, who was also the executor of the estate of J. Frankowski, asked the court to immediately suspend A. Porter’s as successor executor for repeated violations of orders for the court. In response, A. Porter pointed out that she was not given proper notice of her suspension as she was not served with a certified copy of the order that suspended her as the law required.

Published on: October 8, 2019

Appointment of a Successor Trustee is Not Required Under the Terms of a Will – Stavin’s Will, 391 N.Y.S.2d 412 (N.Y. App. Div. 1977)

by Stephen Bilkis

Testators often include provisions for successor executors to take over the responsibilities of administration in the event that the primary executor is not able or is unwilling to serve through the entire period of administration. Naming a successor trustee also provides for a more efficient transfer of responsibility in the event the primary trustee steps down.

In the case of Stavin’s Will, there was a dispute related to the appointment of a successor trustee that had its roots after probate began when one of the two co-executed died. The person named by the testator as the deceased co-executor’s successor petitioned the court for letters. The remaining co-executor objected.

In 1969 E. Stavin died testate. In her will she named her two sons, C. Stavin and M. Stavin as co-executors of her estate. The will also named the wife of C. Stavin as his successor executor if C. Stavin predeceased the testator. Similarly, the will named the wife of M. Stavin as his successor executor if he predeceased the testator. Neither son predeceased the testator. However, in 1970, four months after letters were issued, M. Stavin died. For the next 5 years C. Stavin when about the duties of administering E. Stavin’s estate.

Published on: October 8, 2019

Court Considers Whether to Reopen Probate After a Year- In re Carney’s Will, 220 N.Y.S.2d 869 (N.Y. Surr. Ct. 1961)

by Stephen Bilkis

In the case of In re Carney’s Will, the Surrogate’s Court considered whether it should allow a party to reopen probate and contest a will a year after the will was admitted to probate letters testamentary issued to the executor.

New York requires that certain procedures must be followed to ensure that anyone with a potential interest in an estate is notified that a probate petition has been filed. This means that all interested parties must be notified and given the opportunity to object to the will. Interested parties typically include anyone who is named in the will as a beneficiary, anyone who was named as a beneficiary in a prior will, anyone who is an heir of the decedent under the rules of intestate succession as described in EPTL § 4-1.1 and EPTL § 4-1.2, and known creditors. In addition to listing the names of interested parties on the citation, the petitioner must send each of them a notice known as “citation.” This requirement protects rights of those who have an interest in the decedent’s estate by ensuring that they are aware of the proceedings and giving them the opportunity to participate in the proceedings. For example, if an interested party is aware of when the hearing will be held to admit a will to probate, he can show up and file a will contest if he questions the validity of the will. However, anyone entitled to a citation can waive it. On the other hand, if the appropriate parties are not properly notified of a probate proceeding, the Surrogate’s Court may determine that it must reopen probate. This is the very issue in the case of In re Carney’s Will.

In Carney, E. Carney, the sole distributee of the decedent’s will, petitioned the Surrogate’s Court to re-open the decedent’s estate because he claimed that the waiver of citation that he signed was obtained fraudulently. Three days after the decedent passed away, his funeral was held. At the funeral, an attorney presented E. Carney with a waiver of citation and asked him to sign it. E. Carney had the opportunity to read the waiver, and his mother advised him not to sign it. After reading the waiver and being assured that by signing the waiver he would not be giving up any rights that he had in the estate, E. Carney signed the waiver. The waiver was clear in stating that by signing it E. Carney would not receive notice of the probate proceedings.

Published on: October 8, 2019

Court Denies Request for Revocation of Letters- In re Estate of Haber, 2011 NY Slip Op 50199 (N.Y. Surr. Ct. 2011)

by Stephen Bilkis

In a contentious probate case, the specific issue that is before the Surrogate’s Court is whether it should revoke the letters of the preliminary executor based on misrepresentations and negligence.

Under New York law, regardless of who a testator nominates in his (or her) will to serve as executor of his estate, the Surrogate’s Court will only appoint that person if he is qualified. In order to serve as an executor, the person must be at least 18 years old, must be a U.S. citizen or legal resident living in New York, must not have been adjudicated to be incapacitated, and must not have been convicted of a felony. After being appointed, the Surrogate’s Court can revoke an executor’s authority upon a finding that he is no longer qualified because of negligent or improper management of the estate, or that he is no longer capable of managing the estate. Examples of actions that would be grounds for removing an executor include stealing of assets from the estate, mismanagement of estate assets, failure to pay creditors, failure to timely account to beneficiaries, or substance abuse.

In the Estate of Haber, the Surrogate’s Court appointed E. Haber as the preliminary executor after a prior preliminary administratrix was removed by the court. E. Haber is also the half-brother of the objectants. In an effort to convince the court that E. Haber was not fit to serve as executor, the objectants cited several actions of E. Haber as grounds for removal. In his place, the objectants wanted the court to either appoint one of them as executor, or a third party.

Published on: September 2, 2019

New York Appellate Court Declares Prior Will Revoked After Motions for Summary Judgement- In re Harper, 2019 NY Slip Op 50333(U) (N.Y. Surr. Ct., 2019)

by Stephen Bilkis

The issue before the Surrogate’s Court is whether a copy of a subsequent will is sufficient to revoke a prior will and prevent it from being probated.

This matter is related to probating a will dated May 27, 1997, which is purported to be the last will and testament of decedent Harper. The petitioners are the executors named in the will, C. Harper and M. Harper. C. Harper is the decedent’s nephew, while M. Harper is his sister. The decedent has several distributees including his surviving spouse and children.

The will directs that the decedent’s personal property and real estate should be divided equally among his nephews, his sister, his 3 children. He left his surviving spouse the remainder of his estate. His will includes language that specifically disinherits any children born after execution of the document or any adopted children. The decedent’s surviving spouse and children filed objections to the will.

Published on: March 31, 2019

Court Decides Case Involving Promissory Estoppel

by Stephen Bilkis

NY Slip Op 05266

The petitioner brought this case to enforce an oral agreement that would be void because of the statute of frauds. The petitioner’s grounds for this action are unconscionability of the statute of frauds. The court agrees that when promissory estoppel is satisfied it would be unconscionable and egregious to rely on the statute of frauds. Nonetheless, the court concludes that the petitioner can’t rely on this doctrine because the application of the statute of frauds would inflict injury on the petitioner and would be unfair. The court felt that while it would be unfair, it was not unconscionable.

The decedent owned an apartment building. His grandsons contend that before 2006, the had helped their grandfather with maintenance and snow removal on the property. Later, the grandfather asked the petitioners about taking over management duties of the property.

Published on: November 28, 2018

Petitioner Seeks Guardianship of Disabled Sister- In re Harper, 2019 NY Slip Op 50333(U) (N.Y. Surr. Ct., 2019)

by Stephen Bilkis

In this case the Surrogate’s Court considers the whether to grant a petition for guardianship of a person who suffers from intellectual and physical disabilities and is unable to care for herself.

Petitioner Laut appeals the denial of a petition she filed under SCPA Article 17-A for guardianship of her disabled sister. The sister has suffered from severe, permanent disabilities all her life. She suffers from cerebral palsy and mental retardation and requires 24-hour care. She is unable to feed herself, is non-ambulatory, and is non-verbal. Using the Bayley scale of infant and toddler development, the sister has been determined to have a developmental equivalent of a 4-month-old.

The petitioner’s parents had cared for her sister her entire life. However, they both died in 2014. While the petitioner wanted to care for her sister after their parents’ deaths, she stated that she was unable to fully do so because she did not have legal guardianship over her sister. For example, she was not able to arrange for a lease for the sister’s apartment and she was not able to maintain the sister’s supplemental nutritional program. In denying her petition for guardianship, the Surrogate’s Court stated that a hearing pursuant to Mental Hygiene Law 81 was more appropriate.

Published on: November 4, 2018

Surrogate Court decides a will construction case where the provision of the will creating a trust failed – In re Dawe, 60 Misc.3d 949 (N.Y. Surr. Ct., 2018)

by Stephen Bilkis

In this case the Surrogate’s Court had to decide how to make sure that a testator’s overall testamentary plan remained intact where a portion of the will is determined to be invalid.

A. Dawe died on March 11, 2014. He was never married and never had children. He was survived by his two brothers, B. Dawe and R. Dawe. However, R. Dawe died in April 2014. The will was admitted to probate in September 2014, with B. Dawe being appointed as co-executor along with J. DeMuro, a friend of A. Dawe

In the will, the decedent made a specific gift to B. Dawe of his 13-year-old cat as well as $6000 to take are of her. The decedent was passionate about genealogy and spent a great deal of time researching Dawe family history. Decedent stated in his will that he is making no additional dispositions to his family. Instead, the decedent directed that the residue of the estate be transferred to the Dawe Family Trust that is to be used to continue and expand a genealogical website that the decedent created, and to create an archive of family genealogical data, photos and heirlooms. The will further provides that 21 years after the death of B. Dawe and his son, E. Dawe, the trust is to terminate and the remaining assets are to go to the Godfrey Memorial Library of Middletown, Connecticut.

Published on: September 13, 2018

Court Discusses Jurisdiction of Distributees and the Doctrine of Laches in Probate Matter – Nechin-Pescow v. S (In re Schnall), 154 A.D.3d 951 (N.Y. App. Div., 2017)

by Stephen Bilkis

In this case the Surrogate’s Court considered the issue as to whether to entertain an objection to probate of a will 30 years after it was originally admitted to probate.

This case relates to the probate proceeding of the will of decedent Schnall. Schnall executed the will in 1976. She died in 1980. Bostwick, Schnall’s daughter, consented to probate. The will was admitted to probate in a decree dated November 13, 1980. In 2009, nearly 30 years later, one of the decedent’s grandchildren filed a motion to vacate the probate decree. The basis of the motion was that several distributees of the decedent had not been named in the probate petition. In 2010 the Surrogate’s Court granted the motion, finding in instances where jurisdiction was never obtained over a necessary party, the decree admitting the will to probate is void as to that party.

Nechin-Pescow filed an amended probate petition in 2013 and filed a second amended probate petition ion 2014. Bostwick objected to probate, arguing undue influence and a lack of testamentary capacity. Two grandchildren of Schnall, Beesmer and Elchoness, filed motions for summary judgment dismissing Bostwick’s objections. The Surrogate’s Court denied the motion.

Published on: August 25, 2018

Appellant’s Claim Barred Due to Res Judicata, Collateral Estoppel

by Stephen Bilkis

Matter of A.

NY Slip Op 05842

The co-executor of the estate petitioned the court pursuant to 2103 to determine if certain funds were withheld from the estate of A. This appeal is from 2 Surrogate Court orders brought by A.S. Those orders denied AS her cross-motion pursuant to CPLR 3211(a)(5) to dismiss the petition regarding two bank accounts. This appeal is dismissed. The second order superseded the first. One bill of costs is awarded to petitioner, payable to A.S.