New York Probate and Estate Administration Lawyer Blog

Published on: April 4, 2014

Court Determines Fee to be Paid to Guardian Ad Litem

by Stephen Bilkis

A New York Probate Lawyer said that, the decedent, died a resident of Nassau County on March 2, 2007, leaving a last will and testament dated June 4, 1993. A petition for probate was filed by a legatee under the will who was related to the decedent by marriage. By order dated February 1, 2010, the court appointed a guardian ad litem to represent the interests of decedent’s missing and unknown distributees. On February 3, 2012, the guardian ad litem filed his report recommending that the will be admitted to probate. At that time, he also filed an affirmation of services. At the request of the court, the guardian ad litem filed a supplemental affirmation on July 24, 2012.

A New York Will Lawyer said the issue in this case is the determination of the fee payable to the guardian ad litem.

Long Island Probate Lawyers said the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority “with reason, proper discretion and not arbitrarily”.

Published on: April 3, 2014

Petitioner Seeks to have Will Codicil Admitted into Probate

by Stephen Bilkis

A New York Probate Lawyer said that, this is an uncontested proceeding to probate a copy of the last will and testament of the decedent. The will is dated June 26, 2002, the original of which cannot be located. The petitioner is the nominated alternate executor, the decedent’s daughter. The nominated executor, the decedent’s husband, has filed a renunciation of his right to serve as executor. A waiver and consent has been filed by the decedent’s son, the decedent’s only other distributee, who was expressly disinherited both by the will offered for probate and by the revocable lifetime trust which is the residuary beneficiary under the will.

The issue in this case is whether the last will and testament of the decedent should be admitted for probate.

A New York Will Lawyer said in order to have a copy of the will admitted to probate, petitioner must satisfy the requirements of SCPA 1407 which provides: A lost or destroyed will may be admitted to probate only if: 1. It is established that the will has not been revoked, and 2. Execution of the will is proved in the manner required for the probate of an existing will, and 3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.

Published on: April 1, 2014

Court Rules on Case Involving Lost Will

by Stephen Bilkis

A New York Probate Lawyer said in this Will Contest proceeding, a motion was filed for the allowance of an attorney from testifying at an examination before trial, and for a further order precluding the respondent for failure to file an adequate bill of particulars.

A New York Will Lawyer said that in August 1980, the decedent consulted another attorney, in connection with the preparation of a new will which because of her death shortly thereafter was never prepared or executed. The lawyer has been briefly examined, the examination was interrupted in order to obtain rulings from the court in regard to the attorney-client privilege.

While an attorney will generally not be compelled to testify as to matters revealed to him by his client within the course of his professional employment, there are, however, several exceptions, one of which permits an attorney “to disclose information as to the preparation, execution, or revocation of any will or other relevant instrument” in an action involving the probate, validity, or construction of a will. The proponent argues that this exception clearly applies in the instant proceeding.

Published on: March 31, 2014

Court Rules on Case Where Multiple Will Documents Involved

by Stephen Bilkis

A New York Probate Lawyer said the subject of this Probate proceeding is the question of revocation of a six-page handwritten document, an alleged carbon copy of which has been offered for probate as the last will and testament of the decedent.

According to a Nassau County Will Contest lawyer, the decedent is an attorney, who died in May 1977. Thereafter, letters of administration were issued to the Public Administrator, County of Nassau, who received the keys to the decedent’s residence from a Nassau County police detective and made a thorough search of the residence.

A New York Will Lawyer said among the decedent’s personal papers the public administrator found a sealed envelope bearing the words “Copy of Deed to Lutheran Cemetery,” “Copy of Last Will and Testament ” and the signature of the decedent. On the back of the envelope, written across the flap was the signature of the decedent.

Published on: March 29, 2014

Petitioner Requests Letters Testamentary

by Stephen Bilkis

A New York Probate Lawyer said this probate proceeding, two of the three preliminary executors move for an order disqualifying their former attorneys from representing the objectants; the motion is opposed.

A New York Will Lawyer said that the decedent died in November 2010, survived by a spouse and two adult children. The decedent executed a will in 1990, a first codicil in 2003, and a second codicil in 2010. In the first codicil, the decedent appointed his son, his attorney, and his accountant, as co-executors and co-trustees. Objections have been filed by decedent’s children only as to the second codicil, the only dispositive provision of which leaves the decedent’s residence in Sands Point, New York to the decedent’s spouse; the will had merely provided her with the right to occupy the decedent’s residence for up to eighteen months after the decedent’s death.

Nassau County Probate Lawyers said the lawyer and the accountant filed a petition for the probate of all three instruments and for the issuance of letters testamentary and preliminary letters testamentary to the two of them, to the exclusion of the son. As indicated above, the son and his sister objected to the probate of the second codicil, and also to the prayer for the issuance of preliminary letters solely to the lawyer and accountant. The dispute regarding the preliminary letters was resolved and preliminary letters testamentary issued to all three nominated executors in February 2011.

Published on: March 29, 2014

Petitioner Brings Case to Probate Lost Will

by Stephen Bilkis

A New York Probate Lawyer said that a probate proceeding was brought by the Petitioner for the probate of a lost will purportedly executed by her decedent brother.

A New York Will Lawyer said that the decedent died in September 2005. A will executed on in 2003, which provided for his wife, and his three children was admitted to probate by this court in 2005. The petitioner in this proceeding seeks to admit a later instrument to probate as a lost will and revoke the earlier will’s probate decree. The allegations contained in the petition may be summarized as follows. Before he died, in 2005, decedent sought the services of his long-time attorney to change the 2003 Will in light of changing circumstances with his wife, specifically her commencement of divorce proceedings against the decedent. As a result of his discussions with the lawyer, the decedent had a new will prepared, the final version of which was completed and then executed by decedent in August 2005.

The terms of the 2005 will differ significantly from the terms of the 2003 Will. The 2005 Will reduced the wife’s share to her elective share, it left nothing to the decedent’s two children and the terms of an option to purchase the decedent’s businesses granted to decedent’s son which existed under the 2003 Will as well, were much less favorable to him under the 2005 Will. Also, the 2003 Will provides for a single executor, while the 2005 Will provides for three executors, and petitioner. The petitioner in this lost will proceeding is the decedent’s sister. Relevant to this motion is the nature of the relationship the decedent had with an individual.

Published on: March 28, 2014

Court Decides Disposition of Family Business in Estate Case

by Stephen Bilkis

A New York Probate Lawyer said the decedent died a resident of Nassau County in December 2010, survived by his sister, the petitioner; and by his brothers, respondent and movant herein. The decedent’s last will and testament executed in May 2000 was offered for probate by the petitioner, who is named as the sole beneficiary of the decedent’s residuary estate, as well as the executrix in the propounded instrument. Preliminary letters testamentary issued to the petitioner by order of the court. The objectants have filed objections to probate of the will.

A Nassau County Estate lawyer said that the disputes presently before the court all relate to a supermarket, which was run by the decedent and his brother. The supermarket is comprised of three separate closely held corporations.

A New York Will Lawyer said the other respondents named in the proceedings brought by the sister are: the accountant for decedent, as well as for the brother and the various corporate entities involved in these disputes; and the replacement of the decedent replacement on the board of directors.

Published on: March 27, 2014

Court Rules in Will Dispute

by Stephen Bilkis

A New York Probate Lawyer said in this probate proceeding, petitioner, by motion, seeks an order vacating a stipulation of settlement and a renunciation and disclaimer purportedly executed to effectuate the settlement.

A Nassau County Probate attorney said that decedent was survived by his spouse (petitioner) and two children of a prior marriage (respondents).

A New York Will Lawyer said the petitioner filed a petition for probate of an instrument and preliminary letters issued to her. Decedent’s son appeared by counsel in the probate proceeding and settlement negotiations ensued. The negotiations resulted in a stipulation of settlement which was “so ordered”. The settlement provided that the assets be divided into three equal parts: 1/3 to the spouse, 1/3 to the respondent, respectively, in trust.

Published on: March 26, 2014

Court Rules on Estate Case Regarding Jurisdictional Issues

by Stephen Bilkis

A New York Probate Lawyer said the petition for letters of estate administration is opposed by the deceased father’s son and daughter who have filed with their objections papers certifying that their father’s will was probated in the Superior Court for the District of Montreal, Quebec, on December 14, 1962. The certificate indicates the will was probated without notice to the heirs and legatees of the deceased.

The petition for letters alleges that the father died intestate a resident of Nassau County. The objectant son and daughter challenge the allegation of residence in this county, and further contend that letters of estate administration may not be granted when the deceased left a will.

A New York Will Lawyer said that assuming the deceased father to be a non-resident and a will has been admitted to probate or established in another state or country, jurisdiction over original probate or administration in this state has been refused. Under such circumstances the Surrogate Court is limited to the issuance of ancillary letters upon proper application, accompanied by a copy of the will and of the foreign letters properly authenticated.

Published on: March 25, 2014

Court Hears Case Regarding Validity of Will

by Stephen Bilkis

A New York Probate Lawyer said a woman died at the age of 91 and was survived by five nieces and nephews, who are the children of her two predeceased brothers. She left no other successor.

The daughter of the woman’s niece offered for probate a document as the woman’s last will and testament. The four other successors also filed waivers and consents to the probate of the proposed document. Preliminary letters testamentary were then issued.

A New York Will Lawyer said the witnesses of the document were subsequently examined. The first witness is also the attorney-draftsman of the proposed document. Afterward, the other grandniece filed an objection to the probate and demand for a jury trial.