When an estate’s fiduciary believes that substantial assets have been wrongfully taken during a decedent’s lifetime or from the estate itself, the remedy is generally to commence a turnover proceeding pursuant to section 2103 of the Surrogate’s Court Procedure Act. After the property which the fiduciary has alleged had belonged to the decedent is identified , the respondent in the proceeding is obliged to establish that he or she has the right to remain in possession.
Continue Reading Turnover is the Recipe for Dishonest Housekeeper

While the standard rule of thumb is that the use of a power of attorney by its holder to make gifts to him or herself is an improper abuse, New York’s Appellate Division’s recent decision in the Matter of George J. Ferrara , 802 N.Y.S. 2d 471 (A.D. 2 Dept 2005) has come to a different determination.
Continue Reading Court Permits Self-Gifting Pursuant to Power of Attorney

New York City’s Civil Court is the busiest on the planet so it is easy to believe that some really weird things happen there. Legal -but logical- weirdness was the order of the day in Bianco v. Pierre 1450/00 (reported in the New York Law Journal on November 15,2005) which involved a garden-variety automobile accident case where a plaintiff passenger was seeking damages from the owner of the taxicab in which he had been injured when the accident occurred.
Continue Reading Court Appoints Insurer’s Attorneys as Defendant’s Administrators

A religious dispute involving a battle for control of Brooklyn’s Satmar Chassidic Community failed to find a forum in the Kings County Supreme Court when a petition for the appointment of a guardian of the Grand Rabbi’s person and property was denied.The petition was brought by six of the Grand Rabbi’s eighty six grandchildren.
Continue Reading Durable Power of Attorney Obviates Need for Guardianship

The Matter of the Estate of Ray F. Morningstar, N.Y.S. 2D 674(A.D. 4 Dept 2005) , a recently reported case , concerned a dispute between alleged nonmarital children of the decedent and the decedent’s marital children who were the estate’s administrators. In its decision denying the petition of the alleged nonmarital children for the removal of the marital children as administrators, New York’s Appellate Division speaks at length to the reasons when a fiduciary may be removed.
Continue Reading Hostility, in and of Itself Will not Justify the Removal of Fiduciaries of an Estate

In the Matter of Zirinsky 2005 NY Slip Op 25454, Nassau County New York Surrogate John Riordan ruled that the fiduciary of a deceased fiduciary must apply to the Court under SCPA 2207(7) in order to obtain all of the rights and powers of the deceased fiduciary. In the absence of such a determination, the power of the fiduciary is limited to that property of the estate coming within his or her possession at the death of the origninal fiduciary.
Continue Reading A Fiduciary Cannot Account to Him or Herself

In order for a will to be successfully contested, the first step is the examination of its witnesses and attorney-draftsman as to the facts and circumstances surrounding the instrument’s execution. This proceeding gives the first glimpse into whether or not the law was properly followed in executing the will and whether or not the testator was mentally competent or subject to duress at the time. Section 1404 of the Surrogate’s Court Procedure Act (SCPA)provides objectant’s counsel with this important tool.
Continue Reading Examination of Witnesses to a Will

A decision of New York’s Court of Appeals handed down on October 27,2005 and published in the October 28 issue of the New York Law Journal in Estate of Mildred B Murphy, Deceased 4 No. 137 resolved issues raised in an unusual situation where a birth mother outlived a son who had been adopted-out but was also named in her will as a beneficiary. The question was whether or not the bequests set out in the will lapsed or passed to his issue pursuant to New York’s anti-lapse statute (EPTL 3-3.3)
Continue Reading ‘Adopted-Out’ child Ruled Issue of Birth Parent if Named as Beneficiary in Will