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Sons Battle for Right to Serve as Sole Preliminary Executor


A New York Probate Lawyer said in this probate proceeding, the decedent’s eldest son petitions for his appointment as the sole preliminary executor. The decedent’s youngest son opposes that application and cross-petitions for his appointment as the sole preliminary executor. The decedent’s only other distributee, her middle son, who is disinherited under the propounded instrument, supports his eldest brother’s application.

It appears from papers filed in this proceeding that the battle between the decedent’s sons commenced prior to her death. In a petition verified in March of 2010, the eldest and youngest son sought to be appointed as the guardians of the decedent’s person and property pursuant to Mental Hygiene Law. At that time, the decedent was living in her Bronx home with her youngest son who was handling her affairs pursuant to a power of attorney. Due to the decedent’s death on October 26, 2010, the guardianship proceeding was terminated without the appointment of a guardian.

A New York Estate Lawyer said that after the decedent’s death, the will was not produced until the eldest son commenced a proceeding against the youngest son to produce the will and the court entered an order on December 29, 2010 directing its production. Thereafter the eldest and the youngest son filed separate probate petitions, each of them seeking the issuance of letters testamentary solely to himself. In a brief period of harmony, the two brothers stipulated that preliminary letters testamentary would issue jointly to them for a period of 90 days. During that 90-day period, it appears that the two brothers failed to do anything with regard to either the probate proceeding or administering the five parcels of realty owned by the decedent which appear to be the primary assets of her estate. After the preliminary letters expired, the instant applications were presented to the court and the brothers continued trading accusations.

Bronx Probate Lawyers said the propounded instrument provides in pertinent part that the residuary estate is divided equally between the eldest and the youngest son, the youngest son is to be the executor, and the eldest son the successor executor. In support of his application to be appointed as the sole preliminary executor, notwithstanding that he is nominated only as the successor executor, the eldest son contends that his brother is ineligible to be appointed as a fiduciary because he was convicted of felonies in Florida in 1984 and because he is dishonest as demonstrated by his misuse of the power of attorney that he obtained from their deceased mother. Specifically, the eldest son asserts that his brother used the power of attorney to purchase a boat for his son. The youngest son improperly used their deceased mother’s funds and he will neither cooperate in the sale of their mother’s home in the Bronx where the youngest son is residing rent free, nor in the sale of a parcel of realty in Florida where his brother’s son resides.

A Brooklyn Probate Lawyer said the youngest son counters that he is in favor of selling all of the parcels of realty and alleges that the eldest son previously abused drugs and alcohol and presently attends meetings for these problems. The youngest son also asserts that his eldest brother went through a bankruptcy proceeding. The youngest son notes that although the decedent was competent when she appointed him as her attorney-in-fact, he needed the power to prevent the middle son from continuing to steal money from the decedent. In support of his cross petition to be appointed as the sole preliminary executor, the youngest son notes that the will nominates him as the sole executor, and as he entered a plea of nolo contendre to the Florida charges, he was never convicted of a felony which would render him ineligible to serve as a fiduciary.

In his effort to disqualify the youngest son, the eldest son submits a certified copy of the youngest son’s Florida arrest record from the Florida Department of Law Enforcement indicating that the youngest son was arrested 1984 and charged with three felony level offenses.

The eldest son also submits a certified copy of the handwritten clerk entry of the Broward County Court pertaining to the youngest son’s arrest and conviction. Three charges surfaced and the sentence for one of the charges was two year probation, a psychological examination and a $250 donation to a charity. The sentence for another charge was a $150 fine plus 5% surcharge. The parties dispute the meaning and interpretation of the two records. With respect to the alternative basis to disqualify the youngest son on the ground of dishonesty, the eldest son submits the decedent’s Chase checking account monthly statements and canceled checks covering the period July, 2008 through June, 2009, evidencing numerous automatic teller machine cash withdrawals and checks payable to the youngest son and his son in Florida for personal items.

The youngest son opposes his brother’s application arguing that his nolo contendre plea does not constitute a conviction as the plea results in adjudication being withheld, and therefore, he cannot be deemed a convicted felon. In response to the alternative ground for disqualification, the youngest son does not dispute that he made the withdrawals with the power of attorney; rather, he proffers as justification that he “saved his mother from financial ruin by the middle son,” as the middle son allegedly defrauded the decedent by forging checks and incurred substantial debts by utilizing credit cards issued to her. He also asserts that he purchased the boat at the decedent’s behest because she was planning to move to Florida and she viewed the boat as a vehicle to escape the heat. In support of his cross petition for preliminary letters, the youngest son notes that he is the sole executor under the propounded instrument and he states that he is in favor of selling all of the decedent’s realty at the right price, including the parcel in the Bronx where he resides and the parcel in Florida where his son resides.

Here, the eldest son fails to provide the court with the equivalent New York counterparts to the applicable Florida penal law sections when his youngest brother entered his plea in 1984. Nonetheless, it appears that the equivalent penal statutes in New York may be criminal possession of a weapon in the 4th degree and unlawful possession of marijuana. In New York, violations of the aforesaid statutes are punishable as a class A misdemeanor and a violation, respectively. Thus, based upon the record before the court, the convictions under the comparable New York statutes do not constitute felonies, and the youngest son is not ineligible to serve as executor. In light of this determination, it is not necessary to discuss the youngest son’s interesting argument that this case is distinguishable from the New York cases discussing the effect of nolo contendre pleas because his probationary period under this Florida plea concluded more than 25 years ago, and under Florida Law upon the conclusion of the probationary period all of his civil rights were restored, including his right to state that he was never convicted of a crime.

In order for the eldest son to prevail on his alternative argument of ineligibility based on dishonesty, the dishonesty contemplated by the statute must be taken to mean dishonesty in money matters from which a reasonable apprehension may be entertained that the funds of the estate would not be safe in the hands of the executor. Thus, generally the dishonesty must rise to the level of a pattern of financial wrongdoing that poses a genuine, serious risk to sound management of the estate.

Although the eldest son submits voluminous bank statements that show his youngest brother personally or through others withdrew funds from his mother’s account which are questionable, utilizing either a power of attorney or ATM withdrawals, he defends his conduct by alleging that his brother was depleting his mother’s accounts by forging checks and using her credit cards for his personal expenses. The youngest son argues that he needed to control his mother’s finances or his brother would have taken everything. He avers that he primarily used the power of attorney to withdraw funds to eliminate the credit card debt and the exorbitant interest rates allegedly incurred by the middle son.

Although the present record is insufficient to establish that, absent a hearing, the youngest son should be disqualified for dishonesty, the record does clearly reveal the acrimonious and hostile relationship that exists among the decedent’s sons. There clearly is no point in holding a hearing on the dishonesty issue if both sons may not serve at this time due to their animosity towards each other. The clear thrust of Surrogate’s Court Procedure Act (SCPA) is to honor the testator’s wishes with regard to the appointment of a fiduciary for the estate, even on a temporary basis, so as to reduce the possibility of spurious pre-probate contests. Although disharmony between a nominated fiduciary and beneficiaries of an estate alone is not a ground for disqualification, a fiduciary may be disqualified on the ground of being otherwise unfit for office where the disharmony rises to the level that it jeopardizes the interests of all the beneficiaries and the proper estate administration.

Here, the brothers’ conduct demonstrates that the hostility between them prevents them from cooperating in the sale of any of the realty or in moving the probate proceeding to a conclusion. At present, it is the eldest son and the middle son on one side and the youngest son on the other. For a brief period, the youngest son and the eldest son tried to co-exist as preliminary co-executors; however, nothing was accomplished during that period and they have regressed to hurling the same allegations toward one another that began at the inception of the guardianship proceeding. Although the youngest son professes that he is willing to sell the respective parcels of realty where he and his son reside, his elder brother asserts that this is not so. On the other hand, the youngest son clearly would like to see the parcels of realty sold in which he and his son do not reside and his elder brother did not assist in ensuring those sales when they served together as preliminary co-executors. In short, until at least some of the parcels of realty are sold and the probate proceeding is concluded, the court finds that all of the decedent’s sons are unfit to serve as a fiduciary of the estate due to the hostility between them.

Accordingly, this decision constitutes the order of the court denying both the eldest son’s petition and the youngest son’s cross petition seeking to be appointed as the preliminary executor of the estate, and granting letters of temporary estate administration to the Public Administrator upon her duly qualifying according to law and settling upon the decedent’s sons a decree granting letters of temporary estate administration to the Public Administrator.

When family members fight over estate because of a last will, things can go out of control. In some situation, relationships suffer and become permanently broken. In your pursuit for amicable estate distribution settlement, consult the Bronx County Estate Administration Lawyer or the Bronx County Probate Attorney from Stephen Bilkis and Associates.

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