An interesting twist on the admissibility of a copy of a will to probate in New York is seen  in In re Estate of Carmody, 821 NYS 2d 858. In this action, the decedent was a New York domiciliary whose original will was admitted to probate in another country. When Carmody’s executor sought to obtain the will so that it might be admitted to probate in New York as well, the High Court of Ireland refused to return the original copy.

In admitting the will to probate in Ireland, it was ruled there that it had been executed and attested in full accordance with New York law. Surrogate Holzman of Bronx County determined that in view of these findings, an authenticated copy of the will could be admitted to probate in New York.

The Appellate Division’s Second Department has upheld the decision of Nassau County Supreme Court Justice Dana Winslow which held that the plaintiff could not  bring an action against a decedent’s estate. In Grosso v. Estate of Gershenson 822 NYS 2d 150, the court stated that an estate is not a legal entity and therefore cannot be sued.

In this action, plaintiff’s breach of contract lawsuit was summarily dismissed because no executor or administrator had been appointed to serve as the decedent’s legal representative. In what seems to be a case of "what in the world were they thinking??" plaintiff’ learned that an administrator or executor is the proper party to a lawsuit but has no authority to sue or be sued unless and until they receive letters appointing them from the Surrogate’s Court.

The  Surrogate’s Court Procedure Act (Section 2307(3) (iii) provides that an attorney-drafter of a will which nominates him or her as an executor can receive a full executor’s commission only if the the testator executes a disclosure statement worded in "substantial compliance" with a specific model. This model requires the testator to acknowledge that he or she has been told that by signing the disclosure statement, there will be a resulting cost to the estate by enabling the drafter to claim a full commission. Continue Reading Attorney-Drafter of Will Loses Claim To Full Executor’s Commission

What better way to end a brief period of inactivity than to recommend you to an article in today’sDeath and Taxes Blog by fellow blogger Joel A schoenmeyer Esq. on the knotty question of how to deal with the apportioning of estate taxes? Many clients –and even their lawyers from time to time– find it difficult to wrestle with this issue. Joel’s article lays out the principles of equitable apportionment in a way that should be easy for you to understand –even if finding the cash to pay the estate tax may not be quite as easy.

The Second Department of New York’s Appellate Division has affirmed a decision of Suffolk County Surrogate John M. Czygier Jr. which refused to admit a codicil to probate because of undue influence.In the Matter of Emilio Pelegrino 817 N.Y.S.2d 121 (A.D. 2 Dept 2006), a second codicil to an 84 year old’s will disinherited his grandson in place of his sister-in-law who was also the proponent of the will.

Continue Reading Codicil Denied Probate Because of Undue Influence