Published on:

Court Analyzes Format of the Will


This is a case being heard in the Surrogate’s Court of Queens County. The matter involves the executor of a will who is requesting that the court construe the instrument, particularly the first paragraph in order to determine what is to be charged to the legacy that he receives under it.

Court Discussion

The paragraph that is being question reads, “After my lawful debts are paid I bequeath the sum of $10,000 to the executor. A New York Probate Lawyer said that out of this sum he is to pay my funeral expenses and other lawful debts and pay for the perpetual care for my grave and the grave of my late husband.”

There are four more paragraphs of the instrument. In the following paragraphs the decedent makes general and specific bequests. In the final paragraph the residue is left to a nephew.

The instrument was drafted by a lawyer on a will form that is typically used by laymen to draft their own wills, which leave legacy of confusion for their heirs and fees for the attorneys that are employed by them. Suffolk County Lawyers said the attorney- draftsman is not representing the petitioner in this case.

In the paragraph in question it is seen that the intent of the last phrase in the paragraph is to nullify the phrase that was printed stating after “all my debts are paid.”

The executor poses the question of what the meaning of “other lawful debts” refers to in this case. Does it include the administration expenses such as the filing fees and attorney fees or is it limited to the debts acquired by the decedent during her lifetime.

The debts of a decedent have been distinguishable from funeral expenses and administration expenses for quite some time. Nassau County Probate Lawyers said it is stated that in the payments of debts the rules of priority are implied. The distinction of these debts provides that the reasonable funeral expenses of the decedent are subject to the payment of expenses of administration shall be preferred debts and claims against the estate. These fees will be paid out of the first money that is received by the fiduciary.

Court Decision

When the court reads the decedent’s will as a whole there is no evidence that the testator intended to extend the meaning of the word debts to include the administration expenses. For this reason, the court finds that the executor will be charged with the funeral expenses and the expense of perpetual care to the headstones of the decedent and her late husband. The costs of administration will be charged to the residuary estate.

The federal and state estate taxes on property being passed on through the will are to be apportioned in accordance with EPTL.

If you are in need of legal assistance of any kind, contact the law offices of Stephen Bilkis & Associates. Our offices are located throughout the metropolitan area of Manhattan for your convenience. You may call us at any time to speak with an expert New York litigator about your situation. A free consultation will be provided to you on your first visit to our offices.

Contact Information