New York Probate and Estate Administration Lawyer Blog

Published on: July 1, 2022

the Court Was Asked to Make A Judicial Construction and to Enforce a No Contest Clause, 2017 NY Slip Op. 31132

by Stephen Bilkis

In New York a construction proceeding involves a petitioner asking the Surrogate’s Court to interpret language in a will or trust that is unclear. The language may be open to conflicting interpretations, the language may be inconsistent with other terms of the will, or the language simply might not make sense.

In In re Petition of Nadler, the decedent was survived by three adult children. Four years prior to her death, the decedent created trust that was funded by shares of a realty company. One of the decedent’s children is a trustee. Under the terms of the trust, the children as beneficiaries were entitled to the income from the trust. Five years after the decedent’s death, the primary asset of the realty company was sold for over $8 million, and a year later the realty company was dissolved.

The petitioners, the beneficiaries of the trust, petitioned the Nassau County Surrogate’s Court for a judicial construction to provide that because of the sale of the assets the realty company and its dissolution, there is no longer a need for the trust. As a result, the trust should end and its assets distributed to the beneficiaries of the trust. The petitioners argue that because the trust does not contain directions related to what should happen in the event of the dissolution of the realty company, there is an ambiguity that requires to court to make a judicial construction. The petitioners point to language in a related trust that allows for the court to step in to resolve any ambiguity related to the trust termination date. The petitioners also rely on the law which states that a trust can be terminated when its purpose ends.

Published on: June 27, 2022

Misconduct must be shown to remove an estate administrator. In re Matter of Estate of Corey, 65 Misc.3d 524 (N.Y. Surr. Ct. 2019)

by Stephen Bilkis

Once an administrator has been appointed, SCPA § 711 provides that they can be removed or suspend under specific circumstances. In In re Matter of Estate of Corey, the Surrogate’s Court was to remove an administrator because he allegedly exceeded the scope of his fiduciary duties and responsibilities.

Background

The decedent died on July 8, 2018 at the age of 92. She was survived by three children and two grandchildren. She was intestate and left an estate valued at about $30,000,000. All of the beneficiaries were eligible to serve as administrator. However, they all agreed that attorney Markello should be appointed administrator. Because Markello was not a beneficiary of the decedent’s estate, all of the beneficiaries had to approve his appointment. Letters of administration were issued to Markello on August 8, 2018.

Published on: June 20, 2022

Father disqualified as a distributee for failure to support decedent. In re Lee, 2021 NY Slip Op 30984(U) (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

New York law provides that a parent can be disqualified for receiving death benefits of their minor child for two reasons: for failing to support the child, or for abandoning the child. EPTL §4-1.4. In In re Lee, probate litigation was initiated requiring the Surrogate’s Court of New York County to determine whether the father of a deceased child should be disqualified based on failure to pay child support.

Background

In March 2016, the child died at age 14 while at boarding school. At the time her parents were divorced. The mother was the custodial parent. The father was ordered to pay child support. The mother petitioned for and was awarded letters of administration for her daughter’s estate. The father did not appear at the hearing and did not oppose the mother being appointed administrator.

Published on: June 13, 2022

Court upheld dismissal of unfounded allegations of undue influence. Capone v. Schmidt (In re Schmidt), 194 A.D.3d 723 (N.Y. App. Div. 2021)

by Stephen Bilkis

In this case, the Appellate Division, Second Department, considered whether the Surrogate’s Court of Kings County erred in granting summary judgment dismissing the objectant’s objections and admitting the decedent’s will to probate.

Background

The decedent died on May 20, 2014 leaving a will dated March 28, 2014. The petitioner filed a petition for probate on July 22, 2014. Several people filed objectants claiming lack of due execution, lack of testamentary capacity, undue influence, and fraud. The Surrogate’s Court dismissed the objections and admitted the will to probate. An objectant appealed.

Published on: June 6, 2022

Court upheld dismissal of unfounded allegations of lack of due execution. Blasi v. Blasi (In re Martinico), 177 A.D.3d 882 (N.Y. App. Div. 2019)

by Stephen Bilkis

In this case, the Appellate Division, Second Department, considered whether the Surrogate’s Court of Kings County erred in dismissing the objectant’s objections and admitting the decedent’s will to probate.

Background

The decedent died on May 20, 2014 leaving a will dated March 28, 22014. The petitioner filed a petition for probate on July 22, 2014. Several people filed objectants claiming lack of due execution, lack of testamentary capacity, undue influence, and fraud. The Surrogate’s Court dismissed the objections and admitted the will to probate. An objectant appealed.

Published on: May 30, 2022

Court determined that the issue of undue influence was a triable issue of fact. In re Gobes, 2020 N.Y. Slip Op. 7887 (N.Y. App. Div. 2020)

by Stephen Bilkis

In a contested probate case, the court considered whether there was an triable issue of fact with respect to whether the decedent had been subjected to undue influence at the time that he executed his will.

Background

On December 22, 2016, the decedent died after a terminal illness. He left a will dated December16, 20216. He was survived by three children. One of his children is the objectant. The petitioner submitted the for probate and the objectant filed objections. The grounds for the will contest include lack of testamentary capacity and undue influence. The petitioner moved for summary judgment dismissing the objections. The Surrogate’s Court granted the petitioner’s motion dismissing the objections and admitting the will to probate. The objectant appealed.

Published on: May 16, 2022

Surrogates Court properly revoked the letters without hearing. In re Kaufman, 137 A.D.3d 1034 (N.Y. App. Div. 2016

by Stephen Bilkis

In In re Kaufman, the Appellate Division was asked to determine whether the Surrogate’s Court erred in suspending the letters of co-executors without an evidentiary hearing.

When a testator makes a will, it is their last opportunity to let the world know what they want to happen to their property once they pass away. Testators can also choose to nominate an executor who would be responsible for managing their estate.

Wills are legally enforceable documents, and courts have a duty to uphold their terms. Thus, whenever the court is asked to make a ruling that would circumvent the wishes of a testator, they make sure that there is a very good reason to do so supported by clear evidence.

Published on: May 9, 2022

Court suspended co-administrators due to their animosity toward each other. In re Steward, 2021 NY Slip Op 2395 (N.Y. App. Div. 2021)

by Stephen Bilkis

In In re Steward the court considered whether the Surrogate’s Court erred in denying a motion to suspend co-administrators where the co-administrators were unable to get along.

SCPA § 711 describes the circumstances under which a court can revoke letters of administration:

Wasted assets. The court has the authority to suspend an administrator if the administrator has wasted estate assets by mismanaging estate property, making illegal investments, by misapplying estate assets, or by otherwise injuring estate property.

Published on: May 2, 2022

Court issued preliminary letters over objections. In re Scott (N.Y. Surr. Ct. 2022)

by Stephen Bilkis

In In re Scott the Surrogate’s Court of Bronx County considered whether to extend preliminary letters testamentary over objections.

The petitioner, the decedent’s step daughter, was nominated in the decedent’s December 21, 2019 will to serve as the executor. The decedent died on January 30, 2020. On July 31, 2020, the court issued an order granting preliminary letters testamentary to the petitioner.

“Letters” are an order issued by the Surrogate’s Court that gives an administrator legal authority to manage the estate of a decedent. Typically they are issued an the beginning of a probate case when the will is admitted to probate. Preliminary letters are temporary letters that typically expire after six months. They are issued to an executor nominated in a will that gives them limited authority when there is some sort of delay in the probate proceedings. In this case, the delay related to an unresolved jurisdictional issue.

Published on: April 25, 2022

Court revoked letters testamentary based on failure to perform fiduciary duties. In re Lewner, 2020 NY Slip Op 34365(U) (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

In In re Lewner, the Surrogate’s Court of New York County was asked to revoke the authority of the administrator of an estate on the grounds that he had not been fulfilling his fiduciary responsibilities.

The decedent died on May 19, 2016 leaving an estate with a value of over $8,000,000. The estate had an income of over $3,000,000 from its real estate holdings. Preliminary letters testamentary were issued to respondent on June 10, 2016.

In his petition to revoke the respondent’s preliminary letters, the petitioner alleged that the respondent was unfit to serve as an administrator as demonstrated by numerous instances in which he failed to perform his fiduciary duties. SCPA § 711. As an example, the petitioner described how in the more than four since the decedent’s death, the respondent failed to file estate tax returns, the decedent’s final income tax return, and the fiduciary income tax returns for the estate. As a result, the estate is exposed to significant interest and penalties. In addition, the court’s records showed that the respondent failed to perform his duties as administrator including filing an inventory as required by 22 NYCRR § 207.20.