New York Probate & Estate Litigation Blog

The Appellate Division has reversed a decision of New York County Surrogate Nora Anderson in the Will of Robin Moles reported at  933 N.Y.S.2d 685 (A.D. 1Dept 2011). She had originally granted the proponent's motion for summary judgment , dismissing the objections of the decedent's nephew who claimed undue influence and a lack of testamentary capacity.The Will disinherited the longstanding beneficiaries of the decedent's longstanding earlier will.

The Matter of Lena A. Greene 932N.Y.S.2D 544 which was decided by Dutchess County Surrogate Pagones and subsequently reversed by the Appellate Division of the Supreme Court would seem to be pretty close to the model case for a successful will contest. The Appellate Division rightly points out that since the Will contained a self-proving affidavit attesting to the conditions under which it was executed, the petitioner's had met their burden of proof to establish a prima facie case that the Will had been duly executed. The  Court goes so far as to opine that even though "the record does not indicate that the will execution was supervised by an attorney, or even that an attorney drafted the will" and that there was therefore no "presumption of regularity" the combination of the fact that the Will contained an attestation clause and a self-proving affidavit was sufficient to establish a prima facie case.

New York has revolutionized its medicaid laws and we all have to go back to school! Lawyers and financial planners have always operated upon the assumption that only testamentary assets are subject to claims by medicaid. That is no longer true. The medicaid law revisions now  go beyond the probate and intestate estate to include “any other property in which the individual has any legal title or interest at the time of death, including jointly held property, retained life estates, and interests in trusts, to the extent of such interests.” . No longer can assets be easily shielded by a trust, or by deeding the house to a family member and reserving a life estate. Joint bank accounts appear to be fair game for recovery efforts by the state.

It is generally well known that when Michael Jackson died, he was on the brink of bankruptcy. Since his death, however, his estate has grown by tens of millions of dollars. For the heirs of James Brown, death has not been nearly as profitable an experience.

Steve Jobs was not able to avoid death but he had considerably better luck with taxes. As John Palley reports in his firm'sProbate Information Blog, without estate planning, Jobs' estate would have had probate and tax expenses upwards of 3.5 billion (that's BILLION  with a "B") dollars but that the judicious use of trusts could have avoided most, if not all, of that amount. Although it is impossible to know exactly what was done to minimize the tax burden on the estate,Palley reports that public property records reveal that various parcels of real property were purchased in the JOBS TRUST and the JOBS, STEVEN P. TRUST.

While the details of Steve Jobs' financial records are well-shielded from prying eyes ,this would  not be the case if there had been a Will to be admitted to probate where court filings and proceedings are public record. What we have learned is that Jobs and his attorneys were able to avoid substantial estate taxes by using means which you, too might employ simply by planning ahead and contacting a competent estate planning professional. He who waits until the last minute --and we almost never know when that is going to be -- will invariably leave headaches of incalculable proportions in , and after, his wake.

The interrorem clause --also known as the "no contest" clause --is not favored in many states. It is not enforceable everywhere. But in New York, it is an often- utilized poison pill used to discourage disgruntled relatives from challenging grandpa's Will.

It isn't often that one makes more money in death than in life but apparently that is what has happened with Michael Jackson. The rock icon died broke but, as of last December 31, his latest estate accounting revealed assets of more than three hundred million dollars according toAll Night Spots. As a result of this, his executors are now asking for permission to fund the trust created for the benefit of his mother Kathryn and his three children to the tune of thiry million dollars.

Writing for the Appellate Division's Third Department, Justice E. Michael Kavanagh has ruled that the Albany County Surrogate erroneously approved an attorney's fee of $58,000 in the Estate of Iris H. Benware reported at  927N.Y.S.2d 173. Although the Surrogate has found the fee to be reasonable, the Appellate Division noted that the amount exceeded the amount agreed to by the parties in the retainer agreement. The Court further observed that there were "no extenuating circumstances in providing legal services to the estate"

For years, you have contributed to your IRA and your 401k with the intention of reaping the benefits of these tax-deferred savings. In doing so, it is easy to lose sight of your designated beneficiaries who will inherit these funds should you not live long enough to spend them. Here is an article in the Metro West Daily News that provides important information so that you can keep these important keystones of both your retirement and your estate in order.

The F.T.C.  has laid down some new restrictions on the bill collectors who often hound the families of deceased relatives soon after their deaths, according to this article on  CreditCards.com (an unlikely source for this lawblogger, but interesting nonetheless). It is important to keep in mind that there are not many reasons why one is required to pay the debts of a loved one. An estate's Administrator or Executor, together with the help of his or her attorney should pay bills from testamentary assets. Non-testamentary assets such as IRAs, 401ks, joint accounts and insurance policies generally pass free of obligations. This may not stop dad's creditors from descending upon you soon after the funeral. Now there are new regulations in place to restrict this sort of intrusion. An good source of information if you are looking for ways to deal with this problem is the Fair Debt Collection Practices Act. It is amazing how few bill collectors seem to have read this powerful law. When they come calling, you probably should have a look at it.