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Petitioner Seeking Common Law Indemnification in Probate Case


A New York Probate Lawyer said that according to sources, in the instant case, the complainant underwent surgery at a Medical Center, and the deceased served as his anesthesiologist. The anesthesiologist died on October 1, 2002 . On October 21, 2002, the anesthesiologist’s father, as executor of his estate, petitioned the Surrogate’s Court, to have the decedent’s will admitted to probate. The petition to admit the will to probate stated that the decedent died while a domiciliary of New York, and that someone was named in the will as successor executor. By decree, the will was admitted to probate, and sometime later, letters testamentary were issued to his father. Thereafter, the father died.

A Staten Island Probate Lawyer said that in 2003 the complainant commenced the main action against, among others, the Medical Center. In 2008, the Medical Center commenced the instant third-party action against the successor executor of anesthesiologist’s estate, seeking common-law indemnification. The successor, a resident of Colorado, retained Colorado attorneys. On behalf of their client, the lawyers entered into a stipulation with the Medical Center, in which, the successor admitted that she was served with the third-party summons and complaint, and stated that the third-party summons and complaint would be forwarded to the medical malpractice insurance carrier for the anesthesiologist. The stipulation also stated that the Medical Center will seek no recovery from the Estate of the anesthesiologist, except to the extent of any professional liability insurance available to the Estate of the deceased anesthesiologist.

A New York Estate Admininstration Lawyer said that by notice of motion, the successor-appellant’s newly-retained attorney in New York moved to dismiss the third-party complaint, based upon the appellant’s affidavit stating that she had been designated as Successor Executor of the Estate of the deceased anesthesiologist, but the Estate was closed, and her role was extinguished in 2006. Her attorney also submitted an affirmation acknowledging that She had been personal representative for an Estate which was domiciled and probated in Colorado, but claimed that her appointment terminated in 2007, pursuant to Colorado law which provides that, “if no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates”. No documents were submitted in support of the appellant’s claim that her status as personal representative had terminated. In opposition, the Medical Center noted that “in Colorado to close an estate, assuming there was one in Colorado, you have to file papers. No such papers are annexed to the motion.”

In the order appealed from, the Supreme Court denied the successor-appellant’s motion on the ground that she failed to establish that at the time of service the estate had been closed under laws of Colorado.

A Nassau County Probate Lawyer said that he successor-appellant acknowledges that she had been appointed the personal representative for the deceased anesthesiologist’s estate, “which was domiciled and probated in Colorado.” A plaintiff may commence an action in New York against a “foreign executor,” that is, an executor domiciled in another jurisdiction. Further, the appellant did not submit any evidence that a closing statement was in fact filed closing the estate, or any other evidence that her appointment terminated. In view of the foregoing, the Supreme Court properly determined that the appellant failed to establish that she was no longer the personal representative of the decedent’s estate at the time the third-party action was commenced. The appellant’s remaining contentions either are without merit or need not be addressed in light of our determination.

According to sources, as provided under New York Law, “A petition for the probate of a will may be presented by (a) any person designated in the will as legatee, devisee, fiduciary or guardian or by the guardian of an infant legatee or devisee or the committee of an incompetent legatee or devisee, or the conservator of a legatee or devisee who has been designated a conservatee pursuant to article seventy-seven of the mental hygiene law; (b) a creditor or any person interested or any person entitled to letters of administration with the will annexed under 1418; (c) any party to an action brought or about to be brought in which action the decedent, if living, would be a party; (d) the Public Administrator or County Treasurer on order of the court, where a will has been filed in the court and proceedings for its probate have not been instituted or diligently prosecuted. 2. Contents of petition. The petition for probate shall allege the citizenship of the petitioner and the testator and shall describe the will being offered for probate and any other will of the same testator on file in the court and shall set forth the names and post-office addresses so far as they can be ascertained with due diligence of all of the persons required to be cited and all of the legatees, devisees and fiduciaries named in the will or any other will so filed. 3. Direction of court. (a) Where a petition for probate has been filed and the proceeding has not been diligently prosecuted the court may direct the Public Administrator or County Treasurer or authorize any party to take such steps as may be required to bring the proceeding to a decree. (b) Where necessary, the court shall determine the text or tenor of the will as admitted to probate and may incorporate the will or any part thereof in the decree.”

The law also provides, in relevant parts, that, “In a proceeding for the probate of a will process must issue to the following persons if not petitioners: (a) The distributees of the testator. (b) The person or persons designated in the will as executor except that a person designated in the will as substitute or successor executor in the event the designated executor cannot act or fails to qualify need not be served where the designated executor is under no disability. (c) Any person designated in the will as beneficiary, executor, trustee or guardian. (d) Any person designated as beneficiary, executor, trustee or guardian in any other will of the same testator filed in the surrogate’s court of the county in which the propounded will is filed. (e) any persons designated in the instrument that created such power of appointment whose rights or interests are adversely affected by the instrument offered for probate. (f) The testator in any case where the petition alleges that the testator is believed to be dead. (g) The state tax commission in the case of a non-domiciliary testator. (h) Where any person to whom process is required to be issued has died, process shall issue to his fiduciary and if none has been appointed, to all persons interested as distributees, nominated fiduciaries or named as legatees or devisees under any will of the deceased.”

Probate, Estate Litigation, Estate Administration, and the likes are often tried and heard before the courts. Persons who have any interest over the subject estate left by the decedent usually resort to legal action in protecting and asserting their rights. In such cases, we need the services of the legal experts who can aid us with the proper remedy or action to take. Stephen Bilkis & Associates, with offices throughout New York, offers the legal assistance of its Kings County Estate Lawyers and its New York Will Contest Attorneys who will not hesitate to aid you in any legal course you decide to take. Speak and consult with your lawyers.

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