New York Probate and Estate Administration Lawyer Blog

Published on: December 28, 2022

Court of Appeals reversed decision related to whether a prenuptial agreement was unfair. In re Estate of Greiff, 703 N.E.2d 752 (N.Y. Ct. App. 1998)

by Stephen Bilkis

In the case of In re Estate of Greiff, the court was asked to determine if a prenuptial agreement that limited what a surviving spouse inherited was fair. The decision turned on who had the burden of proof of showing unfairness.

Background

Helen Greiff (plaintiff) and Herman Greiff married when Helen was 65 and Herman was 77. The Greiffs signed reciprocal prenuptial agreements that waived their respective surviving spousal rights in the event of the death of the other. Herman’s will left his entire estate to his children from a prior marriage (the children) (defendants). After Herman died, Helen filed a petition seeking a spousal share of Herman’s estate. The children objected based on the prenuptial agreements.

Published on: December 26, 2022

Court construed the will to contain missing terms that were crucial. In the Matter of the Estate of Eugenia Herceg, 193 Misc.2d 201 (2002)

by Stephen Bilkis

When crucial terms are missing from a will, a court may construe the will to contain those terms if clear and convincing evidence establishes the testator’s intent.

Background

Eugenia Herceg died leaving a will, executed on December 2, 1999. The executor of the will was Columba Pastorino. The will included a residuary clause.

Published on: December 21, 2022

Post-conceived children have equal rights as natural child to benefit from a trust. In re Martin B., 17 Misc.3d 198 (N.Y. Misc. 2007)

by Stephen Bilkis

The trustees managing seven trusts executed by Martin B. in 1969, filed request that the Surrogate’s Court, New York County provide direction on distribution of trust assets to post-conceived children of Martin B.’s deceased son, James. The court was asked to construe the terms “issue” and “descendants.”

Background

The grantor of a trust died on July 9, 2001, survived by his wife Abigail and their son Lindsay, but predeceased by his son James, who died of Hodgkins lymphoma on January 13, 2001. James, however, after learning of his illness, deposited a sample of his semen at a laboratory with instructions that it be preserved and that, in the event of his death, it be held subject to the directions of his wife Nancy.

Published on: December 19, 2022

The administrator of a donor’s estate has standing to bring an action against the donee to enforce the terms of the gift. Smithers v. St. Luke’s-Roosevelt Hospital Center, 723 N.Y.S.2d 426 (2001)

by Stephen Bilkis

Whenever someone brings initiates a lawsuit, they must have standing to sue. Those with standing generally must have a financial interest in the matter. In Smithers v. St. Luke’s-Roosevelt Hospital Center, the Appellate Division had to determine if the administrator of an estate had standing to sue a donee to enforce the terms of a gift.

Background

In a June 16, 1971 letter to St. Luke’s-Roosevelt Hospital Center (Hospital) (defendant), R. Brinkley Smithers announced his intention to make a $10 million gift to the Hospital over time to establish an alcoholism treatment center. In the letter, he retained a veto power for himself over the center’s project plans and staff appointments. As it was Smithers’ intention that the treatment center be established in a separate facility, the Hospital purchased a building and opened the Smithers Alcoholism Treatment and Training Center (Center) in 1973.

Published on: December 14, 2022

Money in a joint account with right of survivorship presumably goes becomes the property of the surviving account owner upon the depositor’s death. In re Estate of Butta, 746 N.Y.S.2d 586 (2002)

by Stephen Bilkis

Not all property owned by decedent is probate property that is subject to the decedent’s will or intestate distribution. Property that is jointly owned by the decedent with another person withs survivorship rights typically becomes the property of the surviving account owner upon the death of the other account holder. This is a rebuttable presumption.

In the case of In re Estate of Butta, the Surrogate’s Court, Bronx County was asked to determine whether a bank account was held jointly out of convenience of if it was the intention of the depositor for the other account holder to gift the account to them.

Background

Published on: December 12, 2022

Spouse of decedent can have limited access to decedent’s Google accounts. In re the Estate of Serrano, 56 Misc. 3d 497 (N.Y. Sur. Ct. 2017)

by Stephen Bilkis

The administration of an estate of a decedent requires a personal representative to identify and gain access to their property. Unlike personal property, real estate, and even financial accounts, electronic accounts of decedents can present special challenges for survivors to access. Typically, a request must be sent the custodian of the electronic records who will request a court order. In the case of In re the Estate of Serrano, the Surrogate’s Court was asked to issue a court order directing Google to allow a decedent’s surviving spouse to access the decedent’s Google accounts.

Background

The petitioner’s spouse died. The petitioner wanted to gain access to the decedent’s Google accounts, including his Google email, contacts, and calendar. The petitioner’s stated purpose was to let the decedents friends know of his passing and to close out any unfinished business. The petitioner requested access to the accounts from Google. Google responded by asking for a court order. The petitioner filed an amended affidavit with the Surrogate’s Court requesting authority to access his deceased spouse’s Google’s accounts.

Published on: December 7, 2022

In re the Estate of Wilder, 49 Misc. 3d 1044 (N.Y. Sur. Ct. 2015)

by Stephen Bilkis

Jane A. Wilder died on July 31, 2014, a resident of New Hyde Park. She was survived by one daughter, Nancy Cave, as well as Nancy’s 3 children. Under the terms of Jane’s January 17, 2014 will, the decedent bequeathed her real estate, as well as her residuary estate, in equal shares to three grandchildren: Scott Cave, John Thomas Cave, and Jessica Cave. The will names Scott Cave as executor and John Thomas Cave and Jessica Cave as successor co-executors.

Scott Cave filed a petition for probate on September 9, 2014. Preliminary letters issued to him on September 15, 2014. The petition for probate lists as estate property the real property located at 1618 Falmouth Avenue, New Hyde Park, New York (the Falmouth Avenue property).

In response, Nancy filed a motion asking the court to issue an order (1) declaring that the Falmouth Property is not part of the estate of Jane A. Wilder; and (2) directing the to amend his petition for probate to remove any reference to the Falmouth Property, and to decrease the total value of the estate accordingly.

Published on: December 5, 2022

Children of adopted-out child in an intraframily adoption were entitled an intestate share. In re the Estate of LaBelle, 51 Misc. 3d 658 (N.Y. Sur. Ct. 2016)

by Stephen Bilkis

Under New York law, children of who are adopted-out are not entitled to an intestate share of their biological parents’ estate. However, exceptions to this rule were enacted to the Domestic Relations Law starting in 1987. In 1987, the New York legislature revised the statute by adding a provision to Domestic Relations Law § 117 permitting adopted-out children in intrafamily adoption situations to inherit from their birth family members in certain specified circumstances.

The issue in the case of In re the Estate of LaBelle is whether the current rule allowing adopted-out children in intrafamily adoptions to inherit from their birth family members applies to a child who was adopted out prior to 1987.

Background

Published on: November 30, 2022

Court refused to reduce the amount of money transferred to a testamentary pet trust. In re Copland, 44 Misc. 3d 485 (N.Y. Sur. Ct. 2014)

by Stephen Bilkis

A pet trust is a legal arrangement that provides for the care and maintenance of pets that outlive their owner. See EPTL 7-8.1 (a). Typically money is placed in the trust and the trust agreement states who is the trustee and how the money is to be used. In some instances, the estate plan goes beyond providing money for the care of the pet. In some instances it even provides that the decedent’s home be maintained for the pets to live in.

In the case of In re Copland, Lenore Lewis Abels, the decedent, made extensive allowances for the care of her cats. However, the executor of her estate asked the Surrogate’s Court to approve a reduction in the amount of money transferred to the testamentary pet trust established under the decedent’s will.

Background

Published on: November 28, 2022

Where a will that was in the possession of the testator could not be located, it was presumed to have been destroyed. In re the Estate of Faragiano, 46 Misc. 3d 646 (N.Y. Sur. Ct. 2014)

by Stephen Bilkis

While this case primarily focused on an estate accounting issue, there was a secondary issue related to a revoked or lost will. Under the laws of New York State, only a testator can revoke their own will. In order to revoke their will, the testator must do one of the following:

Execute a new will
Execute a document that clearly indicates the intention to revoke the will. The revocation document must be executed with the same formalities required to execute a will.