Power Of Attorney Not Always Easy To Use

An article in today's New York Times sheds some interesting light on powers of attorney and their sometimes unforeseen drawbacks. Your lawblogger thinks it is well worth a look.

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Do Not Try This At Home --The Do It Yourself Will

The Do It Yourself  legal industry is flourishing with claims that you do not need a lawyer to get your affairs in order with a low-cost DIY will. Just input your credit card information, download the easy to use form, fill in the blank spaces and seal it in an envelope in anticipation of Judgment Day. $29.95 will get you the security of knowing that you have made your Will and have not had to lay out huge sums of money for an attorney.

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Sometimes A Trust Works Best

One of the major features of the Surrogate's Court is that it is a court of public record. Unfortunately, that can be one of its major drawbacks. Every document filed in every estate is available to anyone. If your grandfather (great grandfather) passed away here in the twenties, his Will together with lots of information about your family is there for all to see. Great if you are a history buff or looking for information about your ancestors but not so great if you would like to keep private stuff private. An example of this can be seen after the recent celebrity deaths of Philip Seymour Hoffman, Lou Reed and James Gandolfini. All of the minute details of their estate planning (or lack of same) are on public display.

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Keep The Peace In The Family Or Your Heirs Will Reap The Whirlwind

In her last public interview in 1994, Jacqueline Kennedy Onassis stated that her most important accomplishment in life was to insure that her children loved each other. Your lawblogger has taken her words to heart over the years. As a litigator practicing in the field of contested matrimonials and contested estates, I can definitively state that nothing matches the intensity of an estate contest between siblings. This is an opinion laid out recently by Patricia Davidson in the MetroWest Daily News.

Sibling rivalries have roots that often run deeply into childhood. "Mom always liked you best" festers for generations until both parents have passed away , when it explodes with all the fury that adult children can muster . The more money they have to pay counsel, the harder they can fight.While family businesses worth millions may be at the center of the battle, it is amazing at how trivial some fights may be.

The time to avoid an epoch estate fight is when your children are young. Follow Jackie O's lead and make damn sure they love each other. See a therapist if you cannot figure out how to do this yourself. In the end, you will have happier kids, you will be happier, and you can go to your eternal rest assured that what you have taken  a lifetime to build will not be squandered in meaningless litigation.

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Be Careful With Mom's Power Of Attorney

A power of attorney is a powerful document posing some danger to the holder. It is common to receive a power of attorney from an aging parent or relative in order to help them handle their personal affairs. In effect, it allows the holder to stand in the shoes of the giver and act as though he or she was that person as far as the outside world is concerned, but a world of trouble lies in wait for the unfortunate who fails to properly use the power.

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When You Get A Waiver In The Mail

In order to commence estate proceedings, it is first necessary that all persons essential to the estate receive notice. This would include any person named in the will or anyone who would have standing to object to the will. If there is no will, it would include all distributees -- next of kin who would inherit pursuant to intestacy. In order to streamline the proceedings , a lawyer representing the petitioner seeking to be either the executor or administrator will start by mailing a waiver to every necessary person .

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A Primer On The Residuary Clause

Every will drafted by an attorney is almost certain to have a residuary clause. This is an essential catch-all provision inserted to make sure that assets go where they are supposed to go. Here is an article by Dennis Fordham in the Lake County (California) News which provides useful information on  this important provision of a will.

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Four Boneheaded Things Not To Do If You Are Making A Will

Your will should not be a do it yourself project. Here are some things to avoid doing when it comes to your will.

1. Do not make changes to your existing will by crossing out provisions and inking in your own new ones. In New York, the probate clerk will examine a will for alterations. A provision which has been stricken from the will with a new term inserted by pen or pencil will simply be ignored in favor of the original. If a portion of the will is blacked out with a marker, the entire will is going to be invalidated and the testator will be intestate.

2. Never make a copy of your signed will. This is an invitation to mischief after you are gone since a photocopy can ultimately be admitted to probate. This can lead to a situation where an interested, if less than honest relative may find both the photocopy together with the original of your latest will. If the photocopy treats that person better than your later will.....just guess which is the one to actually be brought to a lawyer to be offered for probate!

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Times Features Comprehensive Article on Trusts

The New York Times has published a rather comprehensive, if brief, overview of trusts. For those of you who find all of the acronyms we use to describe various trusts, this may prove to be very helpful.

your  lawblogger would add a little postscript to this article with regard to the issue of whether of not you are considering naming a bank as your trustee. First of all, this should not even be considered if your trust is not worth at least several million dollars. You should also consider that once you appoint a bank to serve as your trustee, this appointment will be more or less written in stone after you have passed away and the trust is established and funded. The problem is that we tend to select a bank based upon the quality of its trust department. The trust officer who has attracted you to the bank when your trust is drafted may well be long retired when the trust is funded. The quality of a trust department may decline as well so you will never be assured that your heirs will have the benefit of the counsel of the bank/trustee you select for them today. For a high net worth trust, best to spend time with your financial advisor and pick the trustee or trustees best suited for you in the long run.

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Mother Denied Recovery Of Damages For Children She Killed

Newsday reports that Nassau County Surrogate Edward T  McCarty III has denied the application of Leatrice Brewer  for a share of damages recovered from the county for negligence of the Department of Social Services in failing to prevent her drowning her three young children.

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Appellate Court Vacates Default In Surrogate Matter

Today, the Second Department of the Appellate Division vacated a default in theMatter of  Skolnick, (2013 NY  Slip Op 05364) reversing the decision of the Surrogate's Court of Rockland County. In this action, the objectant Stacy Ross had unsuccessfully attempted to vacate a default in the lower court after the Petitioner had failed to serve her personally with a citation and then, after moving to have her served by certified and regular mail. The problem here that Ms. Ross had evidently been vacationing down the Jersey Shore and none of the citation-bearing mailings had reached her until she returned home to find that a default had been take against her and the Will of the decedent admitted to probate.

The court opined that "An elementary and fundamental requirement of due process in any proceeding which is accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" . In making a determination as to whether notice is "reasonably calculated," the unique information about an intended recipient must be considered, "regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case" Here, given that the Surrogate's Court was aware that Ross and her family would be away from her home in Sloatsburg until sometime in late September 2008, and was vacationing in Long Beach Island during that time, and given that there was no indication that Ross's address in Long Beach Island was unavailable, in order for notice of the probate proceeding to be reasonably calculated to reach Ross, the Surrogate's Court should have at least directed that the supplemental citation be mailed to Ross's address in Long Beach Island, instead of solely directing that the supplemental citation be mailed to Ross's address in Sloatsburg.

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Court Rules Against Operation Of In Terrorem Clause

Nassau County Surrogate Edward W. McCarty III has ruled in the Matter of The Estate of Walsh   (2013 NY Slip Op 51060(U)) that an in terrorem clause in the decedent's Will was not violated when a beneficiary of the estate  opposed the executor's turnover petition seeking to recover the proceeds of a joint account which was in the name of her sister and the decedent and which the executor claimed was merely an account of convenience for the decedent. Upon her sister, Joan Tipping responding to claim the proceeds of the account as her own, the executor, Patricia Walsh attempted to invoke the Will's in terrorem clause  which provided that a legacy would be forfeited if the beneficiary filed a claim against the estate later determined to be invalid.

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Choosing Your Trustees--Don't Take Yes For An Answer

If you have minor children, your legal affairs are not in order without a Will with a minor's trust. Your lawblogger's first boss used to say that the cost of the sports car your child purchases at eighteen is directly proportional to the amount of his or her inheritance. Some lawyers --including yours truly-- will refuse to prepare a Will which omits a trust if minor children are involved. A trust is an absolutely necessary vehicle to manage your assets for the benefit of your children --- even after they turn eighteen. Kids who have lost their parents need expert guidance to handle substantial sums of money until they mature later in their twenties (my trusts run at least to the age of twenty five).

Don't think you will have enough to leave your kids to make a trust worthwhile? Just consider that the instrumentality of their orphaning is likely to be a catastrophic accident. Instant fortune even though you will not be here to enjoy it.

 

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What's Happening With Mom's Estate???

Your lawblogger gets calls on a regular basis from folks wondering what is happening with a parent's estate. Most are concerned that a relative whom they do not trust is doing something improper behind their back. The safeguards against this in New York are just about foolproof.

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Growing Strategy To Stagger Receipt Of Legacies

One of my first bosses used to say the price of the sports car your child purchases is directly proportional to the size of his inheritance when he turns eighteen. This tried and true axiom has occurred to more and more parents and they are dealing with the situation in greater numbers. An article by Chris Taylor in the Financial Post reported here speaks to how more folks are utilizing testamentary trusts with delayed payouts.

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Charitable Lead Trusts May Have Important Consequences

Conrad Teitell's Philanthropy Tax E-Letter highlights some interesting and important points about charitable lead trusts. The trusts are used as a vehicle by high net worth individuals to provide benefits to charities of their choice while still passing the property to their heirs with little or no gift tax. Problems may arise if the donor's involvement with the trust causes the value of the trust corpus to be included in his or her gross estate. If nothing else, this article underscores that complex trusts are a "do not try this at home" proposition. Their successful drafting, implementation and operation requires that you utilize the services of competent legal and accounting specialists to avoid serious pitfalls.

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Afterborn Child Causes Confusion In Delaware Estate

The estate of boxing promoter Ronald "Butch" Lewis has raised a number of issues that a local law school professor has called "a great final exam question". As reported in Delaware Online, claims for child support must be filed against an estate within eight months of a person's death. Lewis' child, however, was not born until nine months following his death, the child support claim having been made just eight days after his paternity was established. 

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Charitable Remainder Trusts Have Benefits For Wealthy Individuals

An article by estate lawyer Joseph Karp in The Palm Beach Post explains  the benefits of the charitable remainder trust. Even with the first $5.25 million exempt from estate taxation, there are those that can take advantage of this trust which enables the trust creator to set aside securities for the benefit of a favorite charity and, by doing so, reduce the tax liability of his or her estate while being able to receive the income from the investments during his or her lifetime.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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How To Avoid An Estate Fight

When asked for advice as to how to avoid the destructive kind of litigation which characterizes a contested estate, many lawyers will probably opt for a well-constructed in terrorem  clause --a legal poison pill which threatens a potential contestant with the loss of his or her legacy.

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Hugette Clark Saga Continues With Shocking Revelations That The Reclusive Heiress Was Ripped Off By A New York Hospital

The story of Hugette Clark, a reclusive copper heiress who died in 2011 at the age of 104 just keeps on getting stranger. Worth hundreds of millions of dollars at her death, she spent the last 20 years of her life as a private pay patient at New York's Beth Israel Hospital. As the New York Times now reports, she was not in need of hospital treatment when she entered the hospital but was allowed to stay there "as long as the hospital didn't need her bed". She was billed millions of dollars for her two decade stay at the hospital during which time she also made multi- million dollar gifts of cash and art to the institution as well as a million dollar bequest in her will.

 

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Appellate Court Upholds Choice Of Executor

The Appellate Division of the Fourth Department has upheld the decision of  the Erie County Surrogate which dismissed objections to the nomination of an  executor in the Matter of the Estate of Carmen J. Russo reported at 954N.Y.S.2d 395 (A.D. 4 dept 2012). The decedent's daughter filed objections to probate, claiming that the proposed executor had a potential conflict of interest which would prevent serving as a fiduciary.

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Court Denies Summary Judgment Where Ancient Wills Clash 34 Years After One Was Admitted To Probate

New York County Surrogate Nora Anderson has denied summary judgment and ordered a trial to determine  whether or not letters testamentary issued in 1979 should be revoked and a will made one week later in 1978 admitted to probate in its place. The case, The Will Of  Elmer H. Bobst is reported in today's New York Law Journal. The will offered by the objectants  was recently discovered by the decedent's great granddaughter and it differs markedly from the one originally admitted to probate. The estate was worth more than ten million dollars 34 years ago.

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Getting Surrogate's Court Records

Your lawblogger frequently gets questions about how to obtain records of an estate. The Surrogate's Court is a court of public record and every document filed is available to anyone. You can get copies of the entire estate of your Aunt Minnie who died in 1912 if that is what you would like. The difficulty is that every one of the state's 62 Surrogate's Courts has its own procedures as to how to do this. The New York County Surrogate's Court has recently circulated a  memo as to how to obtain its records which you can seehere. As this notice mentions, it is necessary to check with the clerk of the court in the county where the records you are seeking are kept, information available from the link contained in the memo.The clerk will inform you of the procedures his or her court has for either coming to court to retrieve the records or of having them sent to you.

Keep in mind that this means that once an estate is filed there are no secrets. If you think you are not getting all the information you should have, get the estate file from the court clerk and bring a copy to your lawyer who can explain your options to you.

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Death And Your Emails

An article by Dennis Kennedy in this month's ABA Journal poses some interesting questions about our "digital estate". Keeping in mind that the "e" in email stands for "evidence" and  "eternal", it is a sure bet that our on line presence will outlive us. That will apply to our email accounts, social networks, and all of the public, private and commercial places where we leave a record of our coming and going on line.

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Appellate Court Disallows 9%Judicial Interest On Executor's Surcharge

It is generally known and accepted that the executor of an estate may be surcharged for improper or excessive expenses incurred in the administration of the estate. That is what happened when the executor of the estate of Ann M Kadah surcharged $35,000 by the Surrogate of Onondaga County, John J. Elliott. Surrogate Elliott, however, went one step further by awarding statutory (9%) interest on the surcharge against the fiduciary. As reported in In Re Carano 946 N.Y.S.2d 755(A.D. 4 Dept. 2012) the Appellate Division of the Fourth Department was ruled to be an unfair penalty and was disallowed.

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Some Lessons From Michael Jackson's Estate

Everybody seems to have a fascination with celebrities -- even when they have died. Your lawblogger has reported on controversies and conundrums arising after the deaths of Whitney Huston, James Brown Rosa Parks and others. Recently, we have seen a spate of stories concerning the estate of Michael Jackson, the "King of Pop".

Here is an article written by attorney Brian Mekdsy of Massachusetts. Mr. Mekdsy has some valuable observations based upon Michael Jackson's estate and how to avoid many of the pitfalls that have plagued it. It is important to learn from the mistakes of others to avoid making similar mistakes. Remember that while we generally do not have the wealth of the celebrities we follow, we are subject to making the same mistakes that they make ---but keep in mind that these errors tend to be more painful and costly when we make them!

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Divorce Requires You To Revise Your Will

An article in today'sSan Antonio Express News gives  an important reminder to revise your Will (and revocable trusts where applicable) when you are divorced. As in Texas , New York law provides that an immediate legal consequence of a judgment of divorce is that each party automatically disinherits the other. Numerous legal relationships are instantly extinguished. Joint accounts with right of survivorship are converted into joint accounts in common. Ownership of real property which was originally as tenants by the entirety (where there is an automatic right of survivorship between husband and wife) are converted into tenancies in commnon,.Certain provisions in a Will or revocable trust may not longer be desirable.

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Whitney Houston Planned Ahead And Created Trust For Her Daughter

In spite of all of the claims and controversy swirling around the death of the entertainment icon Whitney Houston, her will shows that she planned ahead and took steps to insure that her daughter Bobbi Kristina would be financially protected and provided for. As fellow blogger Bradley Anderson reports here,  Houston was aware that her eighteen year old daughter was already dealing with many of the same demons which plagued her own life, having had bouts with the effects of drugs and alcohol. Add to that the real possibility that one of the less reliable and trustworthy folks in the circle surrounding Houston could gain control of the singer's estate and dissipate the assets, she chose the route of a testamentary trust. Thus she sidestepped the dangers of an estate fight with ex-husband Bobby Brown. While our reach from the grave to protect our loved ones is indeed finite, a well-constructed trust can help focus and safeguard assets for the benefit of a child already deprived of the guidance of a loving parent.

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Circumstantial Evidence Leads To Finding Of Triable Issues Of Fact In Undue Influence Claim

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.

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Petitioners Establish Prima Facie Case To Admit Will To Probate-- But Triable Issues Of Fact Based Upon Medical Evidence Lead Appellate Division To Remand For Trial

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.

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New Medicaid Regulations Create Confusion And Require Revision Of Financial Plans In New York

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.

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A Humerous Twist On An Interrorem Clause (With A Not So Humerous Downside)

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.

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Appellate Court Rules That Legal Fee Is Excessive

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"

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Time To Review Your IRA And 401k Designations

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.

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After The Funeral, The Bill Collector May Be An Unwelcome Guest

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.

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Surrogate Denies Landlord's Turnover Proceeding

The complexities of New York City real estate rules and regulations found their way into a recent decision by the Appellate Division ,First Department  in In re Joy Trezza reported at 923 N.Y.S.2d 108. Here, the court upheld the decision of Surrogate Troy Weber which denied the turnover petition of  Francine Horowitz, a landlord attempting to gain possession of a coop apartment occupied by  the alleged common law spouse of the decedent.

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Surrogate Admits 19 Year Old Will To Probate Without Witness Affidavits --Sometimes You Can Bend The Rules (A Little)

Today's New York Law Journal  reports that Nassau County Surrogate Edward J McCarty has found an interesting solution to an interesting problem in the Will of Jean Santoro, 2011-363-36488(May3.Apparently, there were no affidavits given by the witnesses to Ms. Santoro's will when she executed it 19 years ago. To make things worse, one witness had disappeared and the other had died. While the old common  law rule  permits the admission of a will to probate where it is an "ancient " document of more than 30 years, this will hardly qualifies as ancient. It even falls a year short under the federal rule which provides for 20 years.

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A Dissertation On "Stuff" --The Probate Procedure Simplified

The late and great comedian George Carlin had a hilarious routine about "stuff". He would expound upon the way in which we continue to accumulate possessions as we go through life and the problems of storing (sometimes you have to buy a bigger house) or traveling with an ever-expanding collection of "stuff". On that dark, dark day when one can no longer fog a mirror with one's breath, it becomes necessary to make a final disposition of all of that "stuff". In a nutshell, that is what the probate process is basically about.

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Appellate Court Re States The Difficulty Of A Will Contest

In its decision in In Re Estate Of Walker914N.Y.S.2d 379, the Appellate Division's Third Department has reminded us just how hard it can be to successfully challenge a will. The court reversed a decision of the Delaware County Surrogate denying a petitioner's motion for summary judgment dismissing objections to the decedent's will.

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Same Sex Spouse Ruled Survivor and Sole Distributee

The New York Law Journal has reported a decision in which the Appellate Division's First Department has upheld a decision of New York County Surrogate Kristen Booth Glen recognizing the right of a same sex spouse to inherit. The case is In Re Estate Of Kenneth Ranftie decided on February 24th.

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Popularity Of Pet Trusts On The Rise

Today's Miami Herald reports on the steady increase in pet trusts. Forty three states, including New York, have laws enabling the creation of a pet trust to provide for the welfare of a beloved cat or dog (no reason why one can't also provide for a parakeet or fish) after its owner has passed away (Yes, yes, I recognize that there is a real question as to whether the human owns the pet or it's the other way around. This is especially true with cats!). 

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Court Of Appeals Upholds "Stranger Insurance"

Today's New York Law Journal brings news of yesterday's Court of Appeals decision in Alice Kramer v. Phoenix Life Insurance Co (decision No. 176) . The court has decided that New York law does not prohibit an insured from procuring a policy on his own life and immediately transferring the policy to a person without an insurable interest in the insured's life, if the insured did not ever intend to provide insurance protection for a person with an insurable interest in the insureds life. This was a question certified to the Court by the U.S. Second Circuit Court of Appeals.

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When Is It Time To Revise Your Will?

A recent Post in the North Carolina Estate Planning Blog provides some good tips about when it is a good idea to revise your will. I would add another suggestion that it is probably also a good idea to do this whenever you move to a new state. Although a will is "ambulatory" (the will you properly executed in Oshkosh will be just as valid in Timbuktu), different states have different rules and procedures on the qualifications of fiduciaries and the need to produce witnesses . Revising your will in a new state and using local witnesses will greatly reduce any problems which could arise if a witness is needed to give testimony to have the will admitted to probate.

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New York Amends Law To Correct Will And Trust Formula Provisions

Newly passed legislation in New York amends EPTL Sec 2-1.13 to correct a problem occurring where wills and trusts executed  prior to December 31, 2009 involve the estates of persons dying this year. As we reported earlier here, formula clauses bequeathing "an amount equal to the amount that can pass free of federal estate tax" create a problem with the sunsetting of the estate tax this past January 1st. Taken as written, they would include not a portion of the estate but the entire estate since there is no estate tax this year and the entire amount of the estate would pass free of tax (the same would apply where this formula was used in conjunction with  a generation skipping transfer tax situation). The upshot of this would be to disinherit a charity or the surviving spouse since it would normally be expected that they would directly receive any amount over the old credit shelter limit (for example, $3.5 million in 2009).

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Partition And Sale -a Remedy for "Mom Died And Our Kid Sister Won't Move Out Of The House"

Several times a year, I am consulted by anguished siblings whose parent has passed away intestate leaving only their residence and no other material assets. Very often this situation is complicated by a brother or sister who has stayed in the house with mom or dad and now refuses to leave what has always been their home.

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Court Of Appeals Warns Estate Planners To Beware

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. 

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Fiduciary Ruled Not Required to Account For Transactions Prior to Decedent's 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

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Points On A Minor's Trust

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.

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Undue Influence As Reflected By A Jury Charge

 

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.

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Failure To Revise Estate Tax Law Has Unintended Consequences

Who'da thunk that we would be almost to April and a bill to re-institute the federal estate tax isn't even on the radar screens down in Washington?  The estates of those dying since January 1 owe no federal estate taxes and there is nothing on the horizon which indicates that this may change soon. In a nation that seems to prefer rich desserts to vegetables, rejoicing over this tax holiday may be a bit premature  --and our current estate tax situation certainly carries with it some unintended risks which should be of some concern.

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Presumption Of Death Certificate Is Rebutted

Nassau County Surrogate John Riordan has found that an objectant in the Matter of the Estate of Willie Stewart,340211 successfully established that she and her son were distributees of the decedent, notwithstanding the fact that his death certificate provided otherwise. While there is a strong presumption as to the information contained in a death certificate, the court was clear to point out that while the document is proof of the cause of death stated therein, collateral facts which it contains may be subject to rebuttal.

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Ruminations On New York's New Power Of Attorney

 

Your faithful lawblogger has recently prepared and given a podcast on  the new statutory Power of Attorney in effect here since September 1. It led me to further thoughts over just what some of the implications of this new power may pose for lawyers and clients alike. Three months after the effective date, it is clear that most of the profession has barely yawned but make no mistake about it, even though it is still evidently under the radar, a quiet revolution in an important segment of the practice of law has taken place.

 

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Failure To Timely File Articles Of Organization Results In A Deed Being Set Aside

The New York State Court of Appeals has just handed down a decision in The Matter of Hausman 2009 NY Slip Op 08854 which has upheld an Appellate Division decision setting aside a deed executed by the decedent in favor of an LLC formed by two of her children two weeks  before they actually filed the articles of organization with the secretary of state. The court ruled that because the  filing had not been made before the deed was executed, the corporation lacked the legal ability to take title to the property . The problem here that although the deed might have been ruled valid under the de facto corporations rule (which is what the Surrogate's Court did initially), there needed to have been some colorable attempt to comply with the statutes governing the organization of corporations before the deed was executed. Because the children of the decedent failed to submit any proof that they had at least tried to file the articles of organization before the execution of the deed, it was determined that the conveyance had failed and the deed was set aside with the property ending up in the residuary of the estate. Since the residuary was to be shared equally between her children , per stirpes, the property was shared with the minor grandchildren of the decedent who had survived two predeceased sons.  

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New York's New Power Of Attorney Mandated for September First

New York State's new form for a power of attorney which takes effect on September 1, 2009 marks a major change in the law. It may be found in Section 644 of New York's General Obligations Law. As I reported earlier, the effective date of the law was postponed from this past February to give the bar a chance to become familiar with the new form and its pitfalls. The changes are so complex that a second law to amend the first and to correct some of its inconsistencies and shortcomings was needed. Unfortunately, those  unruly children who comprise the august body some folks call the New York State Senate were so busy this summer having what can only be seen as a legislative food fight that virtually no meaningful work was done for weeks and this most important piece of legislation has not yet been signed into law. This can only add to the possibility that the new law will become an attorney's relief act.

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Court Orders Destruction Of Frozen Semen Specimens

With the advent of modern science comes legal issues we never dreamed of in law school (at least if we went to law school in the seventies or earlier!). Witness the decision of the First Department of New York's Appellate Division in Speranza v. Repro Lab Inc reported at 875 N.Y.S.2d 449. In affirming a decision of New York County Supreme Court Justice Jane Solomon,  it was declared that the administrators of the estate of the plaintiffs' late son had no right to the semen specimens deposited in the defendant tissue bank  and the administrators would also not be entitled to an injunction against the destruction of the specimens.

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Court Decision Rules That Estate Bank Account Can Not Be Jointly Held With Executor

Island Federal Credit Union v. Gerald Smith 875 N.Y.S.2d198 is a somewhat offbeat case which resulted in an interesting decision by the Second Department of the Appellate Division reversing a Suffolk County Supreme Court Decision. The bank was seeking to recover the proceeds of a bank account opened in the name of a probate estate  against the son of the deceased executor. The son was sued both individually and in his capacity as his father's executor. The bank claimed that the proceeds were paid by mistake to the son .

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New Power Of Attorney Law To Take Effect In New York On September 1

Sweeping changes in New York's law concerning powers of attorney are due to take effect on September 1, 2009. The legislature has revised Chapter 644 of the laws of 2008 to amend the state's General Obligations law . The changes are complex and affect, among other things, not only the instrument's  form but also the level of fiduciary responsibility imposed, the need for the agent to keep detailed records and to make them available and provisions for using the power to make major gifts. In fact, the  effective date  for the new power was extended from January to give the bar a chance to become familiar with the new law. It looks as if we are all going back to school!

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Surrogate's Court Bears Ultimate Responsibility For Deciding A Reasonable Attorney's Fee

The question of attorney's fees has been revisited in the Matter of Eleanor E. Goliger 871 N.Y.S.2d 689. The Appellate Division's Second Department upheld a decision of Nassau County Surrogate John Riordan which fixed the reasonable value of  an attorney's services to the estate's executor at $25,000. The problem was that the attorney had billed and received $169,277.59. Her appeal of the court's order that she return $144,277.59 was unsuccessful and the lower court's decision was affirmed.

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Appellate Division Upholds Arbitration Agreement

While the Surrogate's Court has a wide jurisdictional reach to adjudicate issues which involve all facets of a decedent's estate, the Matter of Pearl B Kalikow 2009 Slip Op 00539  represents somewhat of an exception to this rule. The Appellate Division's Second Department upheld Nassau County Surrogate John Riordan's decision to recognize an arbitration agreement made by the decedent in her lifetime.

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Appellate Division Sets Rules For Genetic Marker Testing In Estate Proceedings

The Matter of James E. Davis 869 N.Y.S.2d 99  involves the challenge to a petition for a compulsory accounting before the Kings County Surrogate by the estate's administratrix. The administratrix took the position that the petitioner lacked standing to challenge the proceeding. In granting the petitioner's motion, Surrogate Lopez-Torres directed the medical examiner to provide sufficient biological material to conduct genetic marker testing.

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Objectant Fails To Establish That "Insane Delusions" Warranted Denial Of Probate

The Third Department of New York's Appellate Division has upheld a decision of the Albany County Surrogate which granted summary judgment and dismissed objections to the probate of a will in the Matter of Turner      recently decided on November 6, 2008. Interestingly enough, the objections failed to challenge the testamentary capacity of the testatrix while claiming that she suffered from "insane delusions" and was the subject of undue influence.

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Surrogate Directs Will Be Reformed To Include Supplemental Needs Trust

Your faithful lawblogger was pleased to end up on the long side of an interesting decision from Nassau County Surrogate John Riordan in the Matter of Estate of Rose Rappaport , 866 N.Y.S.2d 483 which was published in the New York Law Journal on October 23. The decedent had executed a will which provided that the bulk of her estate would be paid into a testamentary trust for the benefit of her daughter Susan who is partially blind ,suffers from a host of physical and emotional disabilities and is unable to care for herself. While the will named Susan's three siblings as executors, it totally failed to nominate any trustees. When I first was given the instrument to offer for probate, my first impression of the inartfully drawn will was to compare the trust to a staircase leading to a landing -- and stopping there! Obviously, it was necessary to petition the court for a will construction to reform the will.

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Appellate Court Directs Turnover Of Joint Account

A recent decision by the Second Department of New York's Appellate Division in The Matter of Dubin reported as Slip Opinion 07126 on September 23rd overturned a decision of Nassau County Surrogate which found that a joint account with right of survivorship had passed outside of the decedent's estate and was not a testamentary asset.

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Legislature's Amendments to Law Impact Estates

For those of you who may be wondering if I fell off the end of the earth, your faithful law blogger has returned after a long vacation --and all of the work that needs to be done before and after a break (yes, it was worth it, but sometimes a bit hard to tell). Our state legislature, in a fairly uncharacteristic display of get-up-and-go, has given us an important new piece of legislation to digest this summer.

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Brooklyn Surrogate Awards Elective Share Of 100 Year Old's Estate To 47 Year Old Nurse/Wife After Deathbed Marriage

The New York Law Journal has recently reported a significant, but bizarre decision concerning the spousal right of election. Brooklyn Surrogate Diana A. Johnson has awarded  47 year old Hua "Judy" Wang one third of the five million dollar estate of her 100 year old husband after a short deathbed marriage. The ruling in the Matter of Berk, 2488/06 has raised more than a few eyebrows --as well as many questions about the law and how it should be applied. Continue Reading Posted In LEGAL INFORMATION
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There's Many A Slip In The Creation Of A Valid Trust

It takes more than good intentions to create a valid trust. This fact was driven home recently when New York's Second Department Appellate Division issued its ruling in Fasano v. DiGiacomo 853 N.Y.S. 2d 657. In 1998, Lucy Fasano executed a trust agreement naming her sister Anna as trustee and her children Ralph Fasano and Lucille DiGiacomo as beneficiaries.  The trust agreement designated Lucy's home as the trust corpus and she actually did execute a deed transferring the property to Anna as trustee. That, however, is where the wheels came off, beginning with Anna's failure to sign the trust document .  Continue Reading Posted In LEGAL INFORMATION
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Objectants Fail To Establish Undue Influence Even Though Testator Suffured From Dementia

Saratoga County Surrogate's Court has issued a decision in the Matter of the Estate of Antoinette M. Murray 853N.Y.S.2d 680 which dismissed objections based upon lack of capacity and undue influence even though evidence indicated that  the decedent had suffered from dementia. Significantly, this will was executed under the supervision of the attorney-drafter and its witnesses attested that the testator understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of her bounty, and her relationship to them. What complicated things here was that a neurologist issued a report  that she had suffered from dementia . Continue Reading Posted In LEGAL INFORMATION
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George Washington's Will

A few days ago, your faithful lawblogger attended a seminar on arbitration. One of the interesting tidbits of the course was that George Washington had a provision in his will requiring all disputes be arbitrated rather than litigated. It would seem that the aim of the father of our country to foster means of alternate dispute resolution more than two hundred years ago clearly placed him ahead of his time! Continue Reading Posted In LEGAL INFORMATION
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Court Of Appeals Reversal Denies Share Of Jello Trust To Adopted -Out Child

About a year ago, I reported here on the  Fourth Department's Matter of Accounting By Fleet Bank which reversed a lower court to provide trust benefits to Elizabeth McNabb, an out of wedlock daughter of the heiress to the Jello fortune after she was adopted out of the family.  Unfortunately, for Ms. McNabb, my earlier headline that she was to receive her "just desserts" has proven to be somewhat premature because New York's Court of Appeals has now reversed that decision. Continue Reading Posted In LEGAL INFORMATION
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Divorce And Its Impact On Your Estate

A recent and worthwhile posting by fellow lawblogger Leanna Hamill on her Massachusetts Estate Planning and Elder Law  Blog speaks to the estate complications that may arise in a divorce. Those of us who practice matrimonial law are all too familiar with the hazards and pitfalls that divorce poses. Continue Reading Posted In LEGAL INFORMATION
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Irrevocable Trust Held To Insulate Estate From Medicaid Claims

We always warn our clients about the need to take appropriate steps to shelter assets from medicaid claims when one spouse spends considerable time in skilled nursing care. The Third Department of New York's Appellate Division has affirmed a lower court decision in In Re Estate of Tomeck  846 N.Y.S. 2d 693 which determined that the Surrogate's Court lacked personal jurisdiction over an irrevocable trust created by the decedent during her lifetime. Continue Reading Posted In LEGAL INFORMATION
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Pittfalls of Powers of Attorney Brought To Light

Fellow lawblogger Joel Schoenmeyer's Death and Taxes Blog calls attention to yesterday's excellent Wall Street Journal article on Powers of Attorney. The latest news coming out about the arrest and indictment of the late Brooke Astor's son Anthony Marshall   together with her former attorney Francis X. Morrissey Jr. highlights the need for vigilance in giving a power and remaining knowledgeable about the activities of the holder. It is must reading. Posted In LEGAL INFORMATION
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Electronic Wills --A Portent Of Things To Come?

An article in the Michigan Telecommunications and Technology Law Review raises the possibility that someday we will be dealing with electronic wills which,  Keven DuComb reports are currently legal (although subject to severe requirements) in the state of Nevada. With this genie apparently emerging from the bottle, one can only begin to imagine the possibilities -- and pitfalls that accompany the promise of electronic wills.  One thing is certain and that is that the application of new technology will make this new phenomenon commonplace with the passage of both time and the necessary enabling legislation. Read on! Posted In LEGAL INFORMATION
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Cost Of Surety Bonds Charged Against Non-Consenting Distributees

New York County (Manhattan) Surrogate Renee Roth has issued a ruling in the Matter of the Estate of Dossie 842 N.Y.S. 259 that the cost of surety bonds required for an Administrator could be charged against the shares of those distributees who refused to consent to dispensing with such bonds. Continue Reading Posted In LEGAL INFORMATION
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Deposition Of Attorney-Drafter Of Prior Will Held Violation Of In Terrorem Clause

A recent decision of Kings County Surrogate Margarita Lopez Torres in In Re Will Of Singer 841 N.Y.S.2d 212 has cost  a son his legacy under his father's will. In addition to conducting an examination of the witnesses to the will pursuant to Section 1404 of the Surrogate's Court Procedure Act,  Alexander Singer also examined the attorney drafter of a prior will made by his father. This additional deposition was held to be in violation of the will's in terrorem clause. Continue Reading Posted In LEGAL INFORMATION
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Pet Trusts

About a year ago, I reported here about pet trusts.  I thought you might be interested in a more detailed article about these relatively new trusts which enable you to ensure that your pet will be well cared-for should you die or become disabled. Estate Planning for Pet Owners is the topic of this article written by fellow law blogger Professor Gerry W. Beyer. Many of you who are wondering how to provide for your pets will find this helpful and informative. Posted In LEGAL INFORMATION
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Estate Tax Sunset Provision Leads To Gallows Humor

I recently came across an article by Arden Dale of Dow Jones Newswire, published on cantonrep.com which is not only hilarious, but also underlines the impending chaos facing estate planners. As many of you may know, the estate tax exemption is rising steadily (it is now two million dollars for an individual and four million for a married couple) until the year 2010 when the tax will be completely eliminated --only to revert to a tax of 55% of anything above the old one million dollar limit in 2011! 

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Texas Lawyer Runs Afoul Of The Law After Cheating Estate

Law Professor Gerry Beyer's Wills Trusts and Estates Prof Law blog reports the sad and cautionary tale of a (now former) member of the Texas Bar who evidently thought he could get away with just about anything. Not only did this disgrace to my profession thumb his nose at the regulations requiring the filing of accountings, he even forged legal documents so he could fraudulently engineer the release of estate funds from the banks holding them. There really are rules (strict ones) protecting the public from conduct such as this. This story is a prime example. Posted In LEGAL INFORMATION
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Joint Accounts May Not Always Be The Way To Go

Many folks keep their funds in joint accounts with friends or relatives. Though some may do so intentionally, knowing full well that the entire asset will pass to the survivor on the account at their death,others may not be fully aware of the implications of such an arrangement. Hyman Darling Esq. of the  Massachusetts law firm of Bacon and Wilson has written a cautionary primer explaining the basics about joint accounts which I have republished for you here.  I would add, however, that it is likely that the suggestion that instructions in your will may be used to qualify the intent of a joint account may not wash all that well in New York. In fact, if all of the assets of a New York resident are in a joint account, it is likely that his or her will won't even be probated. Therefore, pay specific attention to what you need to do if it is not your intention for your co-depositor to have these assets after you die. When in doubt, consult your lawyer. He or she will offer better guidance than the platform officer at your bank. Posted In LEGAL INFORMATION
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What Happens To Your Passwords When You Die?

I just came across an excellent and thought-provoking article by fellow blogger Dierdre Wheatley-Liss, Esq. in her Estate Planning You and Yours Blawg. As Ms. Wheatley-Liss reminds us, we are all consistently reminded to keep our passwords a deep dark secret. Great advice most of the time but what happens when someone dies? How do their families gain access to their information and assets. What can and should we do about it? I think you will find her suggestions very instructive and useful. Posted In LEGAL INFORMATION
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Puleeze Don't Mark Up Your Will !

Making pen or pencil changes to a will is not a good way to avoid paying your lawyer to redo the instrument by doing it yourself. Every now and then, a thrifty testator decides that he or she will perform the alterations independent of counsel. Bad Idea! Continue Reading Posted In LEGAL INFORMATION
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Choosing A Testamentary Trustee

Choosing a testamentary trustee can be a difficult task. Your trustee has the job of administering the assets of your trust for the benefit of loved ones long after you are gone. In effect, the trustee is the hand that reaches beyond the grave on your behalf. Your choice of trustee should merit your most serious consideration.

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Richard Nixon's Will -- Some Notes

Fellow lawblogger Joel A. Schoenmeyer 's "Death and Taxesblog.com" has discovered -and published—a copy of the will of the late Richard Nixon. Not only does the document have some significance for those of us with historical bent (before your lawblogger went to law school, I managed to earn a Master's Degree in American History) but also, Joel has provided us with an interesting analysis of some of its technical aspects as it is apparently very artfully drawn. Click on the hotlink and read on.

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Exhumation? Not in Suffolk County !

A Suffolk County, New York State Supreme Court Justice has denied the petition of a widow to have her late husband's body exhumed so that it might be cremated in accordance with what she claimed to have been his last wishes.

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Lost Wills

It is possible to admit a lost will to probate if certain important conditions are met. Section 1407 of New York's Surrogate's Court Procedure Act provides that a lost or destroyed will is admissible if (1) it is established the will has not been revoked, (2) The will has been executed in the procedure provided for by law and (3) All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of a will proved to be true and complete.

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Storing Your Will and Other Legal Documents

Leanna Hamill's Massachusetts Estate Planning and Elder Law blog contains a useful set of instructions as to how and why you should take special pains to store your will and other important legal documents. She goes beyond the "put em where they won't burn" basics. Her excellent article merits your consideration.

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Death and Taxes Law Blogger Reviews Dickens' Bleak House

For some time, I have enjoyed reading Death and Taxes -The Blog which is published by Chicago area attorney Joel A. Schoenmeyer. While the blog's focus is understandably on Illinois law (just as my blog tries to focus upon New York law), a variety of topics are well-presented which are of common interest to all of us interested in the field of probate and estate law and litigation.

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In Terrorem Clauses

In terrorem ("no contest") clauses are frequently used by testators and attorney draftspersons to dissuade legatees from contesting wills by providing that a legatee who contests the will forfeits his or her bequest. Section 3-3.5 of the Estates Powers and Trusts Law permits in terrorem clauses but with certain specific limitations

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Testamentary Capacity

Our public policy favors enabling people to be able to direct the disposition of their assets at death if at all possible. We spend a lifetime gathering wealth and possessions and it is important to us that we control the manner in which our estates are distributed when we die. In order to facillitate the making of a will, the law sets a very low bar as far as testamentary capacity is concerned. The law presumes that a person is competent and it is generally necessary to rebut this presumption with expert medical proof.

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New York vs Florida

My fellow blogger Juan Antunez has called our attention to an excellent article reprinted in his Florida Probate Litigation Blog. "New York vs Florida" by Amy B. Beller provides an incisive comparison of New York and Florida Probate law. This article is of particular relevance because of the large number of New Yorkers who maintain residences in Florida. The two states have significant differences in certain aspects of estate practice and Ms. Beller's article is a great starting place to determine which jurisdiction may provide a more advantageous forum for a particular estate.

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Some New Year's Suggestions

With the new year upon us, I thought I would pass along a few suggestions which will make it less likely to avoid ending up in a case like the ones I like to report on in this blog. Law, like medicine, is best practiced preventively so here are a few pointers.

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What is an Administration Proceeding

When someone dies without a will, we say that they have died intestate. Since there is not set of written instructions as to how to dispose of the decedent's property, we do so pursuant to the rules of intestacy as set forth in the law. Also, since there is no individual or entity named to administer the deceased's estate, the law provides that a close relative or a person or an entity with and interest in the estate may apply to become the decedent's administrator. The Administrator is the fiduciary appointed by the surrogate's court who stands in the shoes of the decedent, marshalls the estate's assets, pays its debts and distributes the balance pursuant to the law.

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The Dead Man's Statute

The Dead Man's Statute provides that the verbal statements of a person who is dead or mentally incapacitated cannot be testified to at trial by an interested party.

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Testamentary Assets and Self-Directed Assets

Not all of your assets will pass through your estate and be directed by the instructions you leave in your will.Assets which can be directed by your will are called testamentary assets while self-directed assets which are not directed by your will are called non-testamentary assets. This is really a very simple concept but it is important to understand it in order to properly plan your estate.

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Spousal Right of Election in New York

There are certain things you can't do in life. You can't roller skate in a buffalo herd. You can't spit into the wind . We all know you can't take it with you . Unless you have a signed agreement in recordable form, you can't disinherit your spouse.

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Standing in Estate Proceedings

Before going to court, it is necessary to have standing to be involved in the case as one of the first prerequisites of success. Every classification of legal proceeding has its own requirements as to standing.

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Angry Wills

It is not uncommon for a parent to disinherit a child. This is usually done pro forma when leaving an entire estate to a surviving spouse. Parents with younger children generally disinherit them in order to insure that their spouses are left with sufficient assets to raise the kids to adulthood. Adult children are often disinherited in favor of a surviving parent to insure that their parents will have sufficient resources to see them through retirement.

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What is Probate?

Probate is the procedure which determines whether or not a will was properly drawn and executed and is the genuine instrument setting forth the wishes and directions of its maker for the disposition of his or her property. In spite of a flood of books and articles constantly demonizing probate and offering us a myriad of ways to avoid it, probate helps to insure that your plans for the disposition of your estate will, in fact, be honored after your death.

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Fiduciaries

A fiduciary holds assets on behalf of another. Examples of fiduciaries include trustees as well as executors and administrators of estates.Also, a person holding a power of attorney may be a fiduciary. Fiduciaries are held to an extremely high standard of conduct and may be subject to severe penalties should they not adhere to it.

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What is a Will?

Real estate, bank accounts, stocks, bonds and collectibles are examples of the wide array of property which we accumulate as we go through life. A will is little more than a formalized set of written instructions as to what is to be done with our possessions after we die. The law wants to see property distributed in the way its owner wished and will accommodate those wishes whenever possible.

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Trusts

Trusts are among the most versitile tools your lawyer has to assist you in protecting your assets and in making provisions for your loved ones. There are many different kinds of trusts which may be employed to suit a variety of family and financial circumstances.

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Powers Of Attorney

The human body is an imperfect machine subject to breakdown as it gets older. We know that we have to eat properly and stay in shape with plenty of exercise in order to minimize the effects of injuries or illnesses even if we can't prevent them outright.

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