Today’s New York Law Journal brings news of yesterday’s Court of Appeals decision in Alice Kramer v. Phoenix Life Insurance Co (decision No. 176) . The court has decided that New York law does not prohibit an insured from procuring a policy on his own life and immediately transferring the policy to a person without an insurable interest in the insured’s life, if the insured did not ever intend to provide insurance protection for a person with an insurable interest in the insureds life. This was a question certified to the Court by the U.S. Second Circuit Court of Appeals.

Continue Reading Court Of Appeals Upholds “Stranger Insurance”

A recent Post in the North Carolina Estate Planning Blog provides some good tips about when it is a good idea to revise your will. I would add another suggestion that it is probably also a good idea to do this whenever you move to a new state. Although a will is "ambulatory" (the will you properly executed in Oshkosh will be just as valid in Timbuktu), different states have different rules and procedures on the qualifications of fiduciaries and the need to produce witnesses . Revising your will in a new state and using local witnesses will greatly reduce any problems which could arise if a witness is needed to give testimony to have the will admitted to probate.

Continue Reading When Is It Time To Revise Your Will?

Newly passed legislation in New York amends EPTL Sec 2-1.13 to correct a problem occurring where wills and trusts executed  prior to December 31, 2009 involve the estates of persons dying this year. As we reported earlier here, formula clauses bequeathing "an amount equal to the amount that can pass free of federal estate tax" create a problem with the sunsetting of the estate tax this past January 1st. Taken as written, they would include not a portion of the estate but the entire estate since there is no estate tax this year and the entire amount of the estate would pass free of tax (the same would apply where this formula was used in conjunction with  a generation skipping transfer tax situation). The upshot of this would be to disinherit a charity or the surviving spouse since it would normally be expected that they would directly receive any amount over the old credit shelter limit (for example, $3.5 million in 2009).

Continue Reading New York Amends Law To Correct Will And Trust Formula Provisions

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 all of the assets of the estate while the party submitting objections bears the burden of coming forward with evidence to establish that the account is inaccurate or incomplete , upon satisfaction of that showing the accounting party must prove by a fair preponderance of the evidence that his or her account is accurate and complete"  Here, however, the petitioner was able to demonstrate that the transactions subject of the objections had actually taken place in the decedent’s lifetime, nearly three years before he died. The executor’s duty to preserve and account for the assets did not arise until the death of the decedent