New York Probate and Estate Administration Lawyer Blog

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.

Published on: November 23, 2022

Court will grant a petition to access contents of a safe-deposit box only to a distribute, beneficiary, or fiduciary. In re the Estates of Adelewitz, 24 Misc. 3d 374 (N.Y. Sur. Ct. 2009)

by Stephen Bilkis

While people often use safety deposit boxes to hold valuable items such as jewelry, cash, and collections, they also use them to store important papers such as wills and other estate documents. Upon death, it is important to immediately access the contents of safe deposit boxes, particularly if they contain the decedent’s will.

In New York, the only way to access the safe deposit box of a decedent is with a court order. The court will only entertain petitions to open safe deposit boxes if they are from a the nearest surviving distribute, a beneficiary, or the fiduciary. SCPA §2003. In the case of In re the Estates of Adelewitz, the court considered who has the right to petition access to safe deposit boxes that were part of the estates of a husband and wife- Steven and Rita Adelewitz.

Background

Published on: November 21, 2022

Surrogate’s Court determined that Richmond County was the proper venue for a probate proceeding. In re the Estate of Bonora, 44 Misc. 3d 171 (N.Y. Sur. Ct. 2014)

by Stephen Bilkis

In New York, the Surrogate’s Court system has jurisdiction over estate matters. There are Surrogate’s Courts in each county in New York. The proper venue for an estate proceeding is determined by where the decedent was domiciled at the time of their death. Domicile refers to the location where a person has their primary home. Determining domicile can be tricky when someone is a long-term patient at a healthcare facility. In the case of In re the Estate of Bonora, the Surrogate’s Court had to determine whether the decedent was a resident of Kings County or Richmond County at the time of her death.

Background

For many years before her death, decedent Palma Bonora resided in Kings County, New York. However, on March 31, 2008, she was admitted to St. Elizabeth Ann’s Health Care and Rehabilitation in Staten Island, Richmond County, New York. She passed away on July 12, 2013 while she was still a patient there. The Public Administrator of Richmond County file for letters of administration and was granted temporary letters on December 13, 2013. The Public Administrator of Kings County moved to intervene and filed objections, alleging that there are common questions of law or fact, including whether the decedent was domiciled in Richmond County or Kings County at the time of her death.

Published on: November 16, 2022

Surrogate’s Court determined that property transferred out of an estate and then recovered had not adeemed. In re Fitzsimmons, 43 Misc. 3d 483 (N.Y. Sur. Ct. 2014)

by Stephen Bilkis

Ademption occurs when property bequeathed under a will is no longer in the testator’s estate at the time of the testator’s death. In the case of In re Fitzsimmons, the court had to considered whether property that was wrongfully transferred from an estate prior to a testator’s death, but subsequently recovered after the death of the testator should be considered to have adeemed.

Background

In 1979, Lillian Hill, the decedent, and her husband William purchased the real estate that is the subject of this proceeding as tenants by the entirety. On February 3, 2003, after William’s death, the decedent executed a last will and testament. In it, she left the real property to her two daughters, Brenda and Marcia, in equal shares subject to a life estate given to Brenda. The residuary clause of the will provided that Brenda and Marcia each would share 50% of the net estate.

Published on: November 14, 2022

Surrogate’s Court refused to vacate a notice of deficiency issued by the NY Department of Taxation. In re the Estate of Cleary, 44 Misc. 3d 211 (N.Y. Sur. Ct. 2014)

by Stephen Bilkis

In this case the Surrogate’s Court was asked to determine the proper valuation of an asset that was part of a decedent’s estate for purposes of determining the amount tax owed to New York State. The executor of the estate, Sylvester Cleary, paid the amount that the Department of Taxation said that was owed. However, Cleary now seeks a refund of the payment.

Background

The decedent died on June 11, 2009 and letters testamentary were issued to the petitioner, Sylvester Cleary on August 31, 2009. The total value of the probate estate was $1,328,044.20. Included in the estate is a condominium, located in Westhampton Beach, New York, with a listed value of $600,000 and shares in a Forest Hills, New York cooperative apartment with a listed value of $350,000. According to the inventory submitted by Cleary, both of the properties were subject to life estates which, at the time the inventory was submitted, had not been valued. The owner of the life estates was a friend of the decedent, Ann Elizabeth DePuy. An agreement was executed between the decedent and DePuy granting her a life estate. The properties remained deeded to the decedent at the time of this death.

Published on: November 9, 2022

In determining who to appoint as fiduciary, the Surrogate’s Court gave deference to the fiduciary nominated by the agent of the testator. In re the Estate of Greenspon, 17 Misc. 3d 586 (N.Y. Sur. Ct. 2007)

by Stephen Bilkis

If a testator left a will, generally they would have indicated in the will who they want to serve as the executor of the estate. The executor, also referred to as the personal representative, serves a fiduciary and is charged with the job of settling the affairs of the decedent’s estate.

While other interested parties can petition the court to be named the fiduciary, courts give great deference to the person named by the testator in the will as that is the person the testator wanted for the job. However, for a variety of reasons, the nominated person may not be chose to or be able to serve in the role or other persons may feel they are a better fit for the role. If that happens, the court appoints another person and issues them letters of administration c.t.a. C.T.A means “Cum Testamento Annexo”- with the will annexed” or something added to the will.

In the case of In re the Estate of Greenspon, the Surrogate’s Court considered the issue of whether the court must give deference to the fiduciary selected by the agent of the testator rather than the testator himself.

Published on: November 7, 2022

Surrogate’s Court considered whether a nominated executor who objected to probate should be issued letters. In re Lublin, 43 Misc. 3d 721 (N.Y. Sur. Ct. 2013)

by Stephen Bilkis

Typically, the court will honor a testator’s choice of executor unless that person is determined to be ineligible. In the case of In re Lublin, the Surrogate’s Court was asked to consider another reason to circumvent the wish of a testator as memorialized in their will.

In the case of In re Lublin, the court considered an issue that was of first impression in New York. The issue was whether the testator’s choice of a preliminary executor must be honored where his actions make clear that he does not support the admission of the will to probate.

Background

Published on: November 2, 2022

Surrogate’s Court considered whether to lift restrictions on limited letters of administration. In re the Estate of Cridland, 30 Misc. 3d 415 (N.Y. Sur. Ct. 2010)

by Stephen Bilkis

In In re the Estate of Cridland, the administratrix of the estate, the decedent’s sister, sought to remove the restrictions from her limited letters of administration so that she could collect settlement proceeds from an action related to the death of the decedent, allocate the entire recovery to the personal injury causes of action, and judicially account for the proceeds.

In New York, before an individual or entity has the legal authority as the personal representative (personal representative, executor, administrator) to act on behalf of the estate of a decedent, they must petition the Surrogate’s Court and the court must issue them a court order called “letters.” There are several types of letters. Letters testamentary are issued if the petitioner was named in the decedent’s will to serve as executor. Letters of administration are issued if the decedent did not have a will. When letters testamentary or letters of administration, the personal representative typically has general authority to take actions necessary to settle the decedent’s estate.

Limited Letters of Administration are a type of letters issued by the court that allow the person to perform very limited and specific functions that are the best interests of the estate, such as commencing a lawsuit. Pursuant to SCPA 702, limited letters make be issued under the following circumstances: