New York Probate and Estate Administration Lawyer Blog

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:

Published on: October 31, 2022

Surrogate’s Court considered a will construction case where the identify of a beneficiary nonprofit was unclear. In re Estate of Geng, 50 Misc. 3d 475 (N.Y. Sur. Ct. 2015)

by Stephen Bilkis

The purpose of a last will and testament is to allow the testator to leave instructions as to what is to happened to their property once the pass away. It’s important for a will to be will-written as clear. Since when it is time to follow the instructions in the will the testator would have passed the way, they will not be available to clarify their intent. It is important that a will speak for itself.

However, if the language of the will is not clear, the court may have to step in and figure out the intent of the testator. For example if the language is not clear enough to determine beneficiaries or if the text of the will was not logical, the court would have to clarity. In Geng, the language in the will regarding a specific beneficiary was not clear. As a result, the executor asked the court of guidance through a will construction action.

Background

Published on: October 26, 2022

Surrogate’s Court declined to probate a document that did not meet the requirements of a will. In re the Estate of Wolf, 38 Misc. 3d 564 (N.Y. Sur. Ct. 2012)

by Stephen Bilkis

A will, when properly executed, is a legally enforceable document in which the testator gives instructions as to what is to happen to their property after their death. In this will contest case the Surrogate’s Court has was asked to determine whether a document signed by the decedent was in fact a last will and testament that should be probated.

Under New York law, as in all jurisdictions, there are very specific requirements for a will to be valid. It must be signed by the testator in the presence of two witnesses or a the direction of the testator in their presence. NY EPTL § 3-2.21. With some notable exceptions, the will must also be writing. Further, at the time that they executed the will, the testator must have had the mental capacity to sign the will.

If, as in this case, a will was executed in another jurisdiction, must have been executed in a manner consistent with that jurisdiction. In this case, one of the documents submitted was executed in Pennsylvania.

Published on: October 24, 2022

Surrogate’s Court was asked to construct unclear terms in a will. In re the Estate of Steflik, 9 Misc. 3d 354 (N.Y. Sur. Ct. 2005)

by Stephen Bilkis

If a New York will contains language that is vague or subject to multiple interpretations, interested parties can initiate probate litigation to request that the Surrogate’s Court determine how the ambiguous language in the will should be construed. This type of litigation is called a “construction action.” The purpose of will construction is to determine the intent of the testator determined from a sympathetic reading of the will as a whole. The court will avoid looking to extrinsic evident to determine the testator’s intent, but will consider extrinsic evidence submitted by the litigants if necessary.

Background

The decedent owned property at 815 Placek Drive, Johnson City, New York. In her will, she left that property to Michael Steflik. The will also stipulated that if the property at 815 Placek Drive was no longer a part of the estate because she sold it, then she bequeathed 30% of her estate to Michael Steflik. The also left percentages of her estate to several other different people. Augustine Steflik 15% Theresa Steflik 20% Richard, John, Joseph, Debra Steflik and Mary Louise Furlong 7% each.

Published on: October 19, 2022

Surrogate’s Court denied summary judgement where a landlord sought payment of rent arrearages from the executrix of an estate. In re the Estate of Jorden, 8 Misc. 3d 789 (N.Y. Sur. Ct. 2005)

by Stephen Bilkis

In this case, the Surrogate’s Court was asked to determine the applicability of the Loft Law in a case where a landlord sought to recover back rent and where the decedent’s estate sought to recover the value of fixtures added to the premises by the decedent.

Under New York law, a loft is a raw, open space that was originally commercial space and not suitable for purposes. However, it became common for owners to rent the space for residential use. The Loft Law was enacted in the 1980s to encourage landlords to legalize the illegal residential units and bring them within the regulatory system that governs residential rentals. One part of the Loft Law applied to fixtures that residents added to their units in order to make the unit habitable and compliant with the residential unit regulatory system.

Background

Published on: October 17, 2022

Surrogate’s Court dismissed argument that proffered will should be rejected due to execution of later will. Summary judgement. In re the Estate of Wimpfheimer, 8 Misc. 3d 538 (N.Y. Sur. Ct. 2005)

by Stephen Bilkis

Under New York law, there are multiple ways to revoke a will. The testator can execute a document clearly indicating an intention to revoke the will. The testator can intentionally destroy the will by ripping it up, burning it, or another action of destruction. Or, the testator can execute a new will. In the case of In re the Estate of Wimpfheimer, there was an objection to probating a 1992 for a number of reasons, including that the testator executed a new will in 2003.

Background

The decedent, Ruth Wimpfheimer, died on February 12, 2003 leaving a probate estate valued at $6,000,000. The only distributees were her daughter and the objectant. The will also establishes a trust that benefits the proponent as well as the decedent’s seven grandchildren. The residuary estate goes to the proponent. The will explicitly limits the amount that the objectant was entitled to the decedent has provided for the objectant’s children during her lifetime and because the objectant would receive future benefits from practicing law in the firm that the decedent’s husband founded.