New York Probate and Estate Administration Lawyer Blog

Published on: April 18, 2022

New York last will and testament failed to meet COVID-related will execution requirements. In re Holmgren (N.Y. Surr. Ct. 2022)

by Stephen Bilkis

In In re Holmgren the petitioner, Philip Holmgren, submitted his sister’s will for probate. Even though the will was not contested, because of the novel circumstances surrounding the execution of he will, the Surrogate’s Court, Queens County issued a written opinion as to whether a will that was executed under the temporary COVID-related procedures was legally sufficient.

Requirements for executing a will in New York

For a will to be valid in New York, the law requires that it must be executed in a specific way.

Published on: April 11, 2022

Execution of will satisfied presence requirements under special COVID-related rule. In re Ryan, 71 Misc.3d 217 (N.Y. Surr. Ct. 2021)

by Stephen Bilkis

In In re Ryan the petitioner asked the Surrogate’s Court of Broome County to admit a will to probate that was executed under the requirements of special rules that were put into effect to make sure that social distancing requirements where followed.

Requirements for executing a will in New York

In New York, for a will to be valid, it must be executed according to the requirements of New York law. This means that the will must be signed and witnessed.

Published on: April 4, 2022

Holographic will not admitted to probate. In re Koutsakos (N.Y. Surr. Ct. 2022)

by Stephen Bilkis

In In re Koutsakos the petitioner asked the Surrogate’s Court of Queen’s County to admit a handwritten will to probate. The will was dated March 18, 2020.

Requirements for executing a will in New York

For a will to be valid in New York, it must be written and executed in the manner required by New York. The rationale for strict requirements is to prevent fraud.

Published on: March 28, 2022

Court determined that will was not revoked. In re Kranz-Marks, 2020 NY Slip Op 50646(U) (N.Y. Surr. Ct. 2020)

by Stephen Bilkis

On August 12, 2018, Kranz-Marks passed away. She left a will dated June 9, 2015. However, the first page of the will had the handwritten word “VOID.” It also included the followed handwritten statements: “Everything will be left to my three daughters: Jessica, Emily, and Erica Marks ONLY!!!” and “My previous will to be executed is with my Aunt Janine Kranz in Wading River.” The testator’s signature was below the statements.

The petitioners argue that the writing on thee 2015 will constitute a revocation of that will under EPTL § 3-4.1(b). They sought to administration of the estate under the laws of intestacy rather than probating the 2015 will. In addition, a 2014 will was submitted to the court by another party along with a petition for that will to be probated.

Among other things, the Surrogate’s Court of Orange County had to determine whether the 2015 will was effectively revoked.

Published on: March 21, 2022

Court denies petition for summary judgement approving compromise petition allocating the entire settlement to wrongful death where there was evidence of conscious pain and suffering. Matter of Qyra 2014 NY Slip Op 24187

by Stephen Bilkis

In the Matter of Qyra, the Surrogate’s Court considered an issue related to the allocation of the money award in a wrongful death lawsuit. On February 25, 2010, while walking in Central Park, Elmaz Qyra was struck by a tree branch and died. The administrator (personal representative) of his estate filed a lawsuit to recover damages and was awarded a $3,000,000 settlement. The administrator petitioned the Surrogate’s Court to issue a decree allocating the entire settlement to wrongful death. The objectant argued that a portion should be allocated to personal injury.

When someone dies as a result of negligence, the personal representative of the decedent’s estate can bring a lawsuit to recover losses suffered by the decedent as well as losses suffered by the decedent’s family. If the lawsuit is successful and money is awarded, the Surrogate’s Court must determine how to allocate the money- to personal injury, to wrongful death, or a combination of both. The manner of allocation determines to whom the money is distributed.

Sums that are allocated to personal injury compensate the injured party—the decedent—for the conscious pain and suffering they suffered because of the negligence. Since the money awarded for personal injury belongs to the decedent, it is considered probate property and is added to their probate estate. Sums that are allocated to wrongful death compensate the decedent’s next of kin for the losses they suffered because of the negligence. That money is distributed directly to the next of kin. It is never a part of the decedent’s estate.

Published on: March 14, 2022

Surrogate’s Court considered whether a will was properly executed where the witnesses were not in the presence of the testator when they executed the attestation clauses and the witness affidavits. Matter of William Ryan, 2021 NY Slip Op 21010

by Stephen Bilkis

In this case, during a 1404 examination of the two execution witnesses, Surrogate’s Court had to determine if the decedent’s will had been properly witnessed given the unusual execution ceremony. For a will to be valid in New York, it must be properly executed. This means that the will must be signed at the end by the testator or at the direction of the testator in their presence. It must also be signed by at least two witnesses in the presence of the testator. Under SCPA § 1404, before a will can be admitted to probate, at least two of the attesting witnesses must appear in court and be questioned by the court.

In Matter of William Ryan the testator was in poor health at the time his will was drafted. In addition, because of COVID, there were restrictions on gatherings. As a result, attorneys found themselves conducting business differently in they would under pre-pandemic conditions. The original plan was for the will to be executed in the parking lot of the office of the attorney who drafted the will. However, Ryan’s conditioned worsened before that happened, and he was hospitalized. The hospital had implemented strict rules to minimize the spread of COVID. As a result, guests were not allowed to visit patients. In order to execute the will, a hospital social worker had to assist.

The social worker delivered the will to Ryan and was present when he signed it. The video feature of a cell phone was used along with a computer at the attorney’s office so that the attorney and the witnesses could be “present” when Ryan signed the will. Immediately after Ryan signed the will, the original was driven back to the attorney’s office where the two witnesses executed the attestation clause and the witness affidavit. The attestation clause and affidavit had been stapled to the original will in a will.

Published on: March 7, 2022

Written agreement between spouses was enforceable and did not abate upon death, even though divorce was not finalized. Will of Dindiyal, 2009 NY Slip Op 32215 (N.Y. Surr. Ct. 2009)

by Stephen Bilkis

In a case where there is an objection to the issuance of letters, the court considered whether an agreement between two spouses who were in the middle of a divorce abated upon the death of one of the spouses.

Background

The decedent and Asha were married. However, at the time of the decedent’s death, he and Asha were in the middle of a divorce. The divorce was never finalized. As part of the divorce process, the couple entered into a written agreement. The terms of the agreement included that

Published on: February 28, 2022

Court refused to hold evidentiary hearing on fitness of administrator. Abram v. Abram, 2020 NY Slip Op 3195 (N.Y. App. Div. 2020)

by Stephen Bilkis

In Abram v. Abram the court was asked to consider whether the Surrogate’s Court of New York County erred in denying an evidentiary hearing on the fitness of an administrator of a decedent’s estate.

Judges have broad discretion in determined whether an administrator or executor is qualified. Typically courts will not disqualify someone unless there is a significant reason to believe that the estate is at risk.

It is not unusual for those who challenge the fitness of an administrator to do so simply because they want to serve as administrator or because they do not like the administrator for personal reasons that have nothing to do with their fitness to serve as administrator.

Published on: January 3, 2022

Inquest judge denies claim filed against a decedent’s spouse where there was no evidence that she had been appointed personal representative. Rotwein v. Murray, 950 N.Y.S.2d 610 (N.Y. Dist. Ct. 2012)

by Stephen Bilkis

In Rotwein v. Murray, the District Court reviewed a case related to claim filed against an estate of a decedent for the payment of medical bills. Under EPTL, creditors have the right to file claims against the personal representative of an estate to seek payment of debt. EPTL § 11–3.1

Background

The decedent was a patient of the plaintiff who was a podiatrist. The decedent left an outstanding debt to the plaintiff of $12, 470.45. The plaintiff unsuccessfully demanded payment form the decedent’s widow. He then filed a claim against the decedent’s widow in her capacity as executor of the decedent’s estate. In the that lawsuit, the claim was for a lesser amount- $5,000. Although the defendant did not respond to the plaintiff’s attempt at service, the court determined that she had sufficient notice of the proceeding. However, because the defendant failed to appear, the court determined that an inquest was the appropriate way to proceed. An inquest is a hearing for the purpose of determining the amount of damages due on a claim.

Published on: November 15, 2021

Creditor objected to allocation of wrongful death award. In re Estate of Domingo Torres, Sr. (2002)

by Stephen Bilkis

While the case of In re Estate of Domingo Torres, Sr. turns on the narrow issue of whether to grant the New York City Department of Social Services (DSS) more time to file objections to the account filed by the personal representative, here we will look at why the DSS wants the Surrogate’s Court to hear its objections.

At the time that Torres passed away, he owed the DSS $87.903.76. As part of the estate administration process, New York law requires that the personal representative pay debts owed by the decedent out of estate assets before assets are distributed to the decedent’s beneficiaries or heirs. However, debts can only be paid to the extent there are funds in the estate to do.

As required, the DSS filed a claim against the decedent’s estate for $87.903.76. Even though it appeared as if the claim was valid and timely filed, it was denied simply because the estate did not have the money to pay it. However, the personal representative filed a lawsuit against the party responsible for Torres’ death and recovered $300,000. From that money, the DSS expected to be able to recover the money it was owed.