The limit for small estates for decedents dying after January 1 , 2009 has been raised in New York. In fact, it has doubled from fifteen thousand dollars to thirty thousand dollars. The filing fee for this simplified procedure is still just one dollar and it remains possible to handle a small estate without the expense of a lawyer.

The dramatic saga of New York County Surrogate-elect Nora Anderson continues with the recent recommendation of the Commission on Judicial Conduct that she be suspended upon taking office on January 1st. The New York Times has reported that a letter sent by the commission to the Court of Appeals states that "“public confidence in the integrity of the judiciary, the courts and the administration of justice would be undermined” if Ms. Anderson presided over cases in Surrogate’s Court while facing criminal charges. Earlier this month, the Surrogate-elect was indicted on charges that she violated campaign finance laws concerning allegations concealing a $250,000 campaign contribution from her boss (who was also charged) and stating that she had advanced the funds herself from her own personal assets.  The limit imposed by state laws for an individual contribution to any campaign is $33,122.50 (a curious number indeed, especially when one considers the $2,300 limit on contributions to a presidential candidate).

Continue Reading Judicial Conduct Commission Recommends Suspension Of New York County Surrogate-Elect

Edward Rogowsky died in March 2001 after leaving the stock in his Brooklyn coop to his life partner of fifteen years, Peter McGarry. The decedent’s will also named McGarry as his executor and made the plaintiffs — his two sons– the alternate residuary beneficiaries of his will but left them nothing of value. One would think that after decedent’s sons had consented to the admission of the will to probate and defendant’s appointment as executor, they would not have sued the defendant for failing to honor an oral promise that they alleged he had made to honor a wish of the decedent to bequeath his interest in the apartment to his sons in exchange for their promise not to contest the will. It took them nearly six years to mount this challenge.

Continue Reading Back Door Post Probate Will Challenge Fails On Motion

The Third Department of New York’s Appellate Division has upheld a decision of the Albany County Surrogate which granted summary judgment and dismissed objections to the probate of a will in the Matter of Turner      recently decided on November 6, 2008. Interestingly enough, the objections failed to challenge the testamentary capacity of the testatrix while claiming that she suffered from "insane delusions" and was the subject of undue influence.

Continue Reading Objectant Fails To Establish That “Insane Delusions” Warranted Denial Of Probate

Your faithful lawblogger was pleased to end up on the long side of an interesting decision from Nassau County Surrogate John Riordan in the Matter of Estate of Rose Rappaport , 866 N.Y.S.2d 483 which was published in the New York Law Journal on October 23. The decedent had executed a will which provided that the bulk of her estate would be paid into a testamentary trust for the benefit of her daughter Susan who is partially blind ,suffers from a host of physical and emotional disabilities and is unable to care for herself. While the will named Susan’s three siblings as executors, it totally failed to nominate any trustees. When I first was given the instrument to offer for probate, my first impression of the inartfully drawn will was to compare the trust to a staircase leading to a landing — and stopping there! Obviously, it was necessary to petition the court for a will construction to reform the will.

Continue Reading Surrogate Directs Will Be Reformed To Include Supplemental Needs Trust

A recent decision by the Second Department of New York’s Appellate Division in The Matter of Dubin reported as Slip Opinion 07126 on September 23rd overturned a decision of Nassau County Surrogate which found that a joint account with right of survivorship had passed outside of the decedent’s estate and was not a testamentary asset.

Continue Reading Appellate Court Directs Turnover Of Joint Account

This evening your lawblogger attended a seminar in the courtroom at the Nassau County Surrogate’s Court. The speakers were the clerks of the Surrogate’s Courts in several Long Island counties as well as New York County. The program underscored the differences between procedure in different counties.

Continue Reading Surrogate’s Court Procedure Differers In Different Counties

Surrogate Thomas E. Walsh II of Rockland County has denied a probate petition where the proponent was unable to establish due execution pursuant to the requirements of the Estates Powers and Trusts Law. It would seem improbable that a will witnessed by three experienced accountants (two of them CPAs) would not pass muster but that was the case in the matter of the Will of Christopher E. DiPasquale, 709/09, decided this past August 28th and reported at page 29 of the New York Law Journal on September 12, 2008.

Continue Reading Failure To Show Due Execution Of Will Leads To Denial Of Admission To Probate

For those of you who may be wondering if I fell off the end of the earth, your faithful law blogger has returned after a long vacation –and all of the work that needs to be done before and after a break (yes, it was worth it, but sometimes a bit hard to tell). Our state legislature, in a fairly uncharacteristic display of get-up-and-go, has given us an important new piece of legislation to digest this summer.

Continue Reading Legislature’s Amendments to Law Impact Estates

A  case just handed down from New York’s Appellate Division Third Department, Matter of Paigo, 2008 NY Slip Op 06250   involves an interesting and successful challenge to the presumption of due execution which arises when the witnesses to a will sign a self-executing (or "living" affidavit) where they attest that the testator signed the will in their collective presence, knew what he or she was doing, understood and agreed with the contents of the will and appeared to be of sound mind. The problem in this case was that the petitioner had presented this will to the testator for signature in a hospital bed without being able to offer substantial proof that he knew the contents of his estate or the identity of the "natural objects of his bounty". A review of the decedent’s medical records indicated that he was "forgetful" and "confused", was impulsive and did not retain information. Also significant was the fact that although an attorney was "minimally involved in the process", he was retained by the petitioner. The court noted that even though he was present at the execution of the will, he had very limited experience in this area of the law. Upon review of the Surrogate’s decision, the Appellate Division found that triable issues of fact existed as to the competence of the decedent and the execution of the will requiring that a trial on the merits of the case be held.