Published on:

Court Rules on Probate Case


A rich man died leaving several properties in Central America and two States in the U.S. Almost two and one-half years later, a petition was filed in the court of a U.S. State by the Country of the deceased man for the order which is alleged to have been destroyed after the man’s death. That petition contains the further allegation that the man was, at the time of his death, a resident of the Country from Central America. The petition was amended in which the petitioner set forth transactions and proceedings with U.S. State Tax Commission wherein the petitioner was advised of the Commission’s disagreement that the man had been a resident of the U.S. State. According to a New York Probate Lawyer, the petition was thereupon amended to read that the man, at the time of his death, was either a resident of the U.S. State or a resident of the Country from Central America.

The petition against the U.S. State was to dismiss their petition for the probate of the will on the grounds that the involved U.S. State court has no jurisdiction to entertain the proceeding and if it has jurisdiction, that it should decline, in its discretion, to exercise it. The Petitioner Country requests a hearing on the matter of the deceased person’s residence and the location of his property.

Tax Law requires that in every proceeding for original letters appointed by in the estate of a non-resident deceased person, the State Tax Commission must be cited as a necessary party. The section contains other provisions to protect the State’s interest with respect to the collection of any tax that might be payable. The petition herein having been amended so as to leave open the question of the man’s residence, the State Tax Commission is taking no active part in the process of the proceeding. It is obvious, therefore, that the amendment of the petition represents not so much a change of mind on petitioner’s part but rather an effort to avoid at this time unnecessary legal action.

It is true that the parties are not all in agreement respecting the man’s residence. Two of the contestants allege that he was a resident in Central America. The Attorney General of the U.S. State and a special guardian of infant parties allege U.S. State as his residence. However, no person claiming the U.S. State residence desires to bring into court the man’s residence concern as a preliminary issue in the process of the proceeding. The U.S. court would have jurisdiction whether the deceased man was a resident or being a non-resident, he died without leaving personal property within the county upon a motion for a preliminary trial of residence.

The Attorney General appears to be the only party to the proceeding contending that the deceased died a resident of the U.S., and he joins in opposition to the motion stating that the question is not relevant to the matters in controversy as to the validity of the paper considered as the deceased man’s last will. The court agrees in the conclusion and holds that the Petitioner has failed to demonstrate the necessity for determination of the issue of residence.

In challenging the jurisdiction of the court to entertain the process of administering the proceeding, the motion papers nonetheless admit that the gross assets owned by the deceased man at the time of his death had a value of over $3,500,000 and such assets are held in custody by the Country in Central America with over $500,000; U.S. State over $2,500,000; Province of Canada–over $500,000. According to a Manhattan Probate Lawyer, the Petitioner alleges, however, that the man left no real or tangible personal property in the U.S.; that his intangible property in the U.S. consists of several bank or brokerage accounts and stock certificates of a number of corporations, a great majority of which were organized outside of the U.S. State. The Petitioner requests a preliminary trial to determine the location of the assets taken into custody by the Public Administrator of the County who acts as temporary administrator of the deceased man’s assets.

The temporary administrator appointed by the court has submitted a report to the court in which he states that a brokerage firm was indebted to the deceased man, there was deposit in a bank, another firm owed the deceased man, and there were securities valued in millions, most of them in street names, all physically located in the U.S. State. All of the securities have been sold by the temporary administrator and the proceeds have been invested in bonds of the United States, the State and the City, all of which are held by the appointed person under the supervision of the U.S. State court.

A trial of the preliminary issue would be expensive and slow. Inasmuch as the court would have jurisdiction in any event, at least insofar as property in the U.S. State is concerned, the parties have long ago reached the point where they are anxious to try the important basic question, that is, the genuineness and validity of the will. The Petitioner, on the other hand, apparently prefers to delay the trial until the matter can be tried in Central America, where the proceeding is moving along at a leisurely pace.

Insofar, the motion to seek a hearing to determine the location of the securities left by the deceased man is denied. The property in the hands of the temporary administrator not only has a location within the County of the U.S. State, but is actually being administered under the supervision of the court and is actually and physically before the said court.

Records revealed that it is argued by the Petitioner that the authority of the U.S. court to entertain a proceeding for the process of administering the will of a non-resident is limited to those properties where no original administration proceeding is pending at the residence of the person who made the will. In the discussion of the question of jurisdiction of the U.S court, it is assume, without deciding the point, that the deceased man was a resident of a Country in Central America. In this property, a proceeding to determine the validity of the will is pending in Central America, which, for convenience, shall be referred to as the residence of the deceased. It cannot be said that this court lacks jurisdiction to entertain the probate proceeding and that, as matter of law, the proceeding must be dismissed.

Thus far it is considered only the power and authority of the court to proceed with the process of administering of the alleged will. Indeed, except for the Petitioner, the trial of the fundamental issues would have been completed by now. What has transpired since the last decision serves to confirm that decision. The Attorney General of the State opposes the present motion. The man died more than five years ago. Contrary to the usual practice of the court, the actual trial of the proceeding has not yet started. No one can assert when the trial in residency can proceed. No one can predict the result. No one can say whether a final decree in the residency will be on a ground that would prevent independent contest. No one can say how long final decision will be delayed. Since the prior decision of the court refusing to dismiss the proceeding, there has been substantial legal action and extensive services by counsel. To remit all parties to another forum after all the advances, and retreats, the exploration, and preliminary conflicts, would be a postponement of justice equivalent to a denial.

Stephen Bilkis & Associates with their most competitive Queens Probate Lawyers can help you get what is rightfully yours. The team recognizes the circumstances you are in and will work hard to patch things for you.

Contact Information