New York Probate and Estate Administration Lawyer Blog

Published on: August 24, 2014

Court Decides Whether it Should Grant Settlement of Account

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the first and final account of the ancillary executor of the estate of the decedent. The court is asked to approve: (i) attorney’s fees; (ii) commissions; (iii) reimbursement of expenses; and (iv) the settlement of the account. The decedent, died on May 3, 2004, leaving a will dated February 13, 2001. At the time of her death, the decedent was domiciled in Florida. Ancillary letters testamentary issued to the executor on July 18, 2005. The accounting covers the period May 3, 2004 to April 21, 2009. An amended accounting covering the period May 3, 2004 to December 22, 2009 was filed on February 5, 2010. The amended accounting shows principal charges to the accounting party of $829,804.35.

A Nassau Estate Lawyer said that, objections to the accounting and the amended accounting were filed by a $10,000.00 legatee and the beneficiary of fifty percent (50%) of the residuary estate. The ancillary executor is the beneficiary of the other fifty percent (50%) share of the residuary estate. By instrument dated December 2, 2010, he withdrew his objections to both the first account and the amended account.

The issue in this case is whether the court should grant the settlement of the account.

Published on: August 23, 2014

Court Decides Case Regarding Constructive Trust

by Stephen Bilkis

A New York Probate Lawyer said this action to vacate a deed or impress a constructive trust was originally initiated by a man, and was transferred to another court by order. The man, as the estate administrator, requests for a decision without proceeding. A woman however cross moved the motion for a declaration that the transfer was a valid gift.

The estate came from their mother who died leaving a last will which was admitted to probate. Letters testamentary was then issued to the estate administrator. In addition to the two parties, the deceased woman was survived by three other children.

A New York Estate Lawyer said that prior to entering an assisted living facility, the deceased woman resided at her own residences. Later, the deceased woman purportedly transferred her interest in the premises to her daughter and reserved a life estate.

Published on: August 22, 2014

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by Stephen Bilkis

This is a probate matter which comes on by motion of petitioner following the suspension of a hearing pursuant to SCPA 1404 held at the law office of respondent’s attorney by agreement of the parties.

A New York Probate lawyer said that Petitioner requests three substantive orders related to the examination of witnesses before resuming the hearing: (1) to continue the hearing at the County Courthouse under the supervision of the Surrogate or other designee; (2) permission to question witnesses regarding events prior to the three-year period before the date the propounded instrument was executed; (3) that the witness and the attorney who drafted the decedent’s last three wills, fully produce all of his files relating to the three wills, the last of which is the propounded will, including files dated prior to the three-year period from the date the propounded instrument was executed.

Petitioner alleges that the decedent, who died on August 31, 2003, had made three wills, all with different or differing provisions as to the disbursement of his estate.

Published on: August 21, 2014

Petitioner Brings Motion Regarding Suspension of Hearing Under SCPA 1404

by Stephen Bilkis

This is a probate matter which comes on by motion of petitioner following the suspension of a hearing pursuant to SCPA 1404 held at the law office of respondent’s attorney by agreement of the parties.

A New York Probate Lawyers said that Petitioner requests three substantive orders related to the examination of witnesses before resuming the hearing: (1) to continue the hearing at the County Courthouse under the supervision of the Surrogate or other designee; (2) permission to question witnesses regarding events prior to the three-year period before the date the propounded instrument was executed; (3) that the witness and the attorney who drafted the decedent’s last three wills, fully produce all of his files relating to the three wills, the last of which is the propounded will, including files dated prior to the three-year period from the date the propounded instrument was executed.

Petitioner alleges that the decedent, who died on August 31, 2003, had made three wills, all with different or differing provisions as to the disbursement of his estate.

Published on: August 20, 2014

Court Decides Case Regarding Letters Testamentary

by Stephen Bilkis

This is a probate proceeding in which objections have been filed to the granting of letters testamentary to an attorney who is the executor named in the decedent’s will.

A New York Probate Lawyer said that Decedent died in July 1970, leaving a will which gave her entire estate to her husband and named the proponent as executor. The husband having predeceased the testatrix, the propounded paper will have no effect as a testamentary instrument to dispose of decedent’s estate and accordingly, her property which consists primarily of a two-family house will pass as in intestacy. The distributees of the testatrix are two brothers and a sister who are residents of Italy and a nephew and niece residing in New York who are children of a predeceased sister.

It is alleged that a day or two after the death of the decedent, the executor named in decedent’s will received from decedent’s step-son who had been residing with decedent, papers and documents relative to the affairs of the decedent including the deed to premises, and a paper writing purported to be decedent’s last will and testament. After a passage of time in which efforts were made by the nephew and niece to ascertain without success whether there was in fact a will, the nephew and niece filed a petition in this court for letters of administration. Thereafter, letters of administration were granted to the nephew and niece.

Published on: July 23, 2014

The Issue in this Case is Whether Attorneys Fees Should be Granted

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent’s real property.

A New York Will Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent’s estate. In addition, the court must release the administrator from the surety bond.

Westchester County Probate Lawyers said the issue in this case is whether the attorney’s fee should be granted by the court.

Published on: July 10, 2014

Court Decides a Case Regarding Kinship Issues

by Stephen Bilkis

A New York Probate Lawyer said this is a case of accounting of the Public Administrator, where the issue of kinship was referred to a court attorney/referee pursuant to SCPA 506. All parties stipulated to waive the report of the referee and to allow kinship issues to be decided by the court based upon the transcripts of the hearing, the documentary evidence, and the arguments made by the attorneys for the claimants and the guardian ad litem representing the interests of unknown distributees.

A New York Will Lawyer said that the decedent died intestate, a resident of Nassau County, in May 2006. Letters of administration issued to the Public Administrator in January 2007. The account filed by the Public Administrator shows the receipt of $354,397.29 of estate assets. There are three alleged maternal cousins of the decedent and seven alleged paternal first cousins of the decedent.

Long Island Probate Lawyers said that in order to establish their rights as distributees, claimants in a kinship proceeding must prove: (1) their relationship to the decedent; (2) the absence of any person with a closer degree of consanguinity to the decedent; and (3) the number of persons having the same degree of consanguinity to the decedent or to the common ancestor through which they take. Claimants who allege to be distributees of the decedent have the burden of proof on each of these elements. The quantum of proof required to prove kinship is a fair preponderance of the credible evidence.

Published on: July 9, 2014

Court Determines Legal Fees in Probate Case

by Stephen Bilkis

A New York Probate Lawyer said that, before the court is the first and final account of the Public Administrator for the estate of the decedent, who died intestate, a resident of Hempstead, on June 21, 1993, leaving one daughter, surviving. Limited letters of administration were issued to the Public Administrator on September 10, 1998 and modified on January 11, 2007 to enable the Public Administrator to collect the surplus money resulting from a foreclosure sale of decedent’s real property.

A Nassau Estate Litigation Lawyer said that, the account filed by the Public Administrator shows the receipt of $17,670.16 of estate principal, which was supplemented by income collected totaling $208.50. This resulted in total charges of $17,878.66. This amount was reduced by administrative expenses through September 30, 2009 in the amount of $2,946.75, leaving a balance of $14,931.91 on hand. The Public Administrator seeks approval of the accounting, approval of commissions, the fixing of fees for the services of the attorney and accountant, and authorization to distribute the net estate to the Nassau County Department of Social Services in full satisfaction of its claim in the amount of $177,020.06 against the decedent’s estate. In addition, the court must release the administrator from the surety bond.

The issue in this case is whether the attorney’s fee should be granted by the court.

Published on: June 22, 2014

Heirs Bring Action Because they were Left Out of Mother’s Will

by Stephen Bilkis

A New York Probate Lawyer said a woman died survived by one sister and thirteen descendants of pre-deceased siblings. The deceased woman’s nephew, the Executor filed a Verified Petition to Probate a Last Will and Testament, dated April 17, 1996 in which he was the nominated Executor and in which he and his two siblings were named as the sole residuary beneficiaries. The Executor was granted Preliminary Letters Testamentary on October 29, 2009. Included in his Petition for Probate was an assertion by the decedent’s Executor that, after a diligent search and inquiry there exists no will, codicil or other testamentary instrument of the decedent later in date. The Petition also listed only the decedent’s one surviving sibling, and the Petitioner and his two sisters, omitting ten of the decedent’s distributees, all cousins of the Executor.

A New York Will Lawyer said the decedent’s one surviving sister and the ten distributees left out of the Petition for Probate, six nieces and nephews and four great-nieces and nephews of the decedent (Objectants), jointly retained their counsel and conducted an investigation that ultimately determined that the April 17, 1996 will probated by the Executor was not the decedent’s Last Will and Testament. Evidence was adduced that the decedent had executed a Last Will and Testament on July 11, 2000 and subsequently intentionally destroyed it. As the July 11, 2000 will revoked all prior wills of the decedent, its destruction would, in the absence of a subsequent will, result in the decedent’s property passing pursuant to the laws of intestacy and the Executor not being named as executor. Accordingly, on December 1, 2009, the Objectants filed a Verified Answer to the Executor’s Petition for Probate and Objections to the Probate of the April 17, 1996 Will.

Manhattan Probate Lawyers said the Executor did not concede to the validity of the July 11, 2000 will, and estate litigation commenced. The Objectants’ counsel secured affidavits from the draftsman of the later will, the attorney who oversaw its later destruction, and witnesses to the will’s execution and destruction. These parties were then deposed by the Executor’s counsel to ascertain if the decedent was mentally competent, under undue influence, duress, or if her actions were the product of fraud. No evidence of a lack of testamentary capacity was adduced at the five depositions conducted by the Executor’s counsel. However, the Executor continued to challenge the validity of the later will and claim that the decedent lacked testamentary capacity at its execution, causing a subpoena duces tecum to be issued seeking the decedent’s medical records.

Published on: June 21, 2014

Will Challenged on the Grounds of Undue Influence

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding where JPM Bank (JPM), co-executor, moved pursuant to CPLR §5015(a)(2) to vacate the decree admitting to probate the decedent’s will dated 24 June 2005 (2005 Will) due to newly discovered evidence. Several charities, the residuary legatees under a prior instrument that are adversely affected by the 2005 Will, join in the application; and, movants seek removal of JPM’s co-executors and appointment of JPM as sole preliminary executor.

The following are the pertinent events that took place:

On 12 September 2005, the decedent died at the age of 93 years. He was survived by two nephews, MF and SF, and the issue of a predeceased nephew. On 21 February 2006, the 2005 Will was admitted to probate by decree and letters testamentary thereupon issued to JPM, MF and ME.