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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.Continue Reading Partition And Sale -a Remedy for “Mom Died And Our Kid Sister Won’t Move Out Of The House”

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. Continue Reading Court Of Appeals Warns Estate Planners To Beware

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…

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.Continue Reading Points On A Minor’s Trust

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.Continue Reading Undue Influence As Reflected By A Jury Charge

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.Continue Reading Failure To Revise Estate Tax Law Has Unintended Consequences

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

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