New York Probate & Estate Litigation Blog

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.

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 . 

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 .

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!

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.

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.

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.

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.

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!

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.

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.

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.

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! 

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.

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.

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.

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!

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.