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.Continue Reading Presumption Of Death Certificate Is Rebutted

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.

Continue Reading Ruminations On New York’s New Power Of Attorney

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…

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.Continue Reading New York’s New Power Of Attorney Mandated for September First

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.Continue Reading Court Orders Destruction Of Frozen Semen 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 .Continue Reading Court Decision Rules That Estate Bank Account Can Not Be Jointly Held With Executor

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…

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.Continue Reading Surrogate’s Court Bears Ultimate Responsibility For Deciding A Reasonable Attorney’s Fee