New York Probate & Estate Litigation Blog

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.

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.

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.  

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.

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.

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 .

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!

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.

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.

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.

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.

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.

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.

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.

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! 

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.