New York Probate & Estate Litigation Blog

A decision of major importance concerning estate planning has come down from the New York State Court of Appeals. InThe Estate of Saul Schneider v. Victor M. Finmann N.Y.3d 2010 N.Y, Slip Op 05281     decided this past June 17th , the court held that the legal representative of a decedent stands in  that person's shoes for the purpose of being able to maintain a malpractice action against the decedent's estate planner where improper advice or negligent estate planning has resulted in a loss. The court was clear in differentiating a claim by the estate's executor or administrator from a claim brought by a beneficiary of the estate. 

The death of New York Yankee owner George Steinbrenner has created a void on our local sports scene which will be hard to fill. Even though your faithful lawblogger has been a fan of New York's other team since its founding in 1962 (and before that, I confess to being a New York baseball Giant fanatic), the "Boss" has been a colorful and charitably generous man who has provided us with years of excitement. Investing about seven million dollars of his own funds into a failing Yankee franchise when he purchased it in the early seventies, Steinbrenner built his fortune up to over  1.1 billion dollars at his death.

The Appellate Division, Second Department has recently ruled in favor of the dismissal of objections to an accounting in In Re Heino 901 N.Y.S.2d 671  which was originally decided by Surrogate Torres in  Kings County. The Court noted that "the party submitting an account has the ultimate burden of demonstrating that he or she has fully accounted for all of the assets of the estate while the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete , upon satisfaction of that showing the accounting party must prove by a fair preponderance of the evidence that his or her account is accurate and complete"  Here, however, the petitioner was able to demonstrate that the transactions subject of the objections had actually taken place in the decedent's lifetime, nearly three years before he died. The executor's duty to preserve and account for the assets did not arise until the death of the decedent

The failure of this Congress to enact an extension and/or modification of the estate tax is underscored by the recent death of billionaire Dan Duncan, Houston's wealthiest citizen. Today's New York Times reports that Mr. Duncan , who passed away late this past March at the age of 77, had a net worth of about nine billion dollars. As most of you undoubtedly know, the estate tax which the cash-starved United States Treasury will collect from Mr. Duncan's estate is zero, nada, zilch!

New York's Appellate Division recently affirmed a decision of Nassau County Surrogate John Riordan which disinherited the daughter of a decedent who had brought a petition to contest her father's will and for a construction of the residuary clause which left $221,000 to various charities. In the Matter of Bernstein  2007 NY Slip Op 04625, in addition to this charitable bequest, the sum of $20,000 was left to each of the decedent's children. The will also contained an in terrorem clause which provided that anyone challenging the will would forfeit any interest they might otherwise have had in the decedent's testamentary estate. By violating the in terrorem clause, petitioner lost any interest she might have had in her father's estate. Therefore, the court went on to find that she did not have any standing to sue.

It should be noted that generally, courts will not hear a petition of a party who does not have an interest in the matter over which they are suing. Once, petitioner unsuccessfully challenged the will, she also lost any standing which she might have otherwise had to bring any legal proceeding in the matter.

A recent article in theTacoma News Tribune about celebrity estates makes for some interesting reading. Not only does the public gravitate towards the news of a celebrity's death and the aftermath but also, this often provides some "teachable moments". In soaking up every piece of news available about Anna Nicole Smith, James Brown or Michael Jackson, we learn the consequences of sloppy (or no) estate planning and how to avoid them in our own less public lives.

This is not my first article about the current failure of our Congress to act on the replacement of the estate tax which expired at the end of last year and I am certainly not the only one following this oddity. All of a sudden it has dawned on me that maybe the lack of Congressional action is not so much a failure of Congress to get its act together as it may be a focused plan to back into what would become a massive tax increase b y doing nothing.

When leaving large sums of money and property to children, keep in mind that they are not legally able to control and use these assets until they are eighteen. Also consider that the amount of money left to them may well be directly proportional to the price of the sportscar they purchase on their eighteenth birthday.

One of the most frequent inquiries I get as an attorney involved in the area of contested estates involves issues of alleged undue influence. I say "alleged" because the public perception of  undue influence is often far removed from its true legal definition. Since many savvy trial lawyers often prepare their cases from the start with an eye to the charge which the judge will give a jury, it is useful to look at undue influence from that angle. One of the best ways to do that is by going directly to section 7:55 of the "Pattern Jury Instructions" (from which I am liberally quoting in this article) that courts rely upon to explain legal issues to the juries who must decide them.

In December 2008, Surrogate - elect Nora Anderson was indicted for allegedly failing to properly report at least a quarter of a million dollars in campaign contributions. While Ms. Anderson contended that this money came from her own personal funds, prosecutors have alleged that the true source of the contributions was Seth Rubinstein, her eighty two year old law partner and mentor. According to theNew York Times, this case raises some unusual questions about what happens when funds claimed as gifts are utilized in a campaign.