Lost Will is Presumed Destroyed

Lost Will is Presumed DestroyedIn a recent case the administrator of an estate tried to probate a copy of a decedent’s will. The son challenged the probating of a copy of the will. The court rendered a ruling there is a presumption that a will in the possession of a decedent which cannot be found after his or her death was destroyed by the decedent.

New York Regarding Missing Wills

The law in New York is clear that there is a strong presumption a will that was in a decedent’s possession cannot be located after his or her death was destroyed by the maker of the will. Destruction of the will revokes the will. In cases where the decedent is in possession of his or her own will and the will isn’t found after they die, a copy of the will cannot be probated. If the individual dies he or she does not have to advise anyone that they destroyed the will. The very fact that the will is not found to be in the possession of the decedent after his or her death is sufficient to establish that the will was revoked.

schlissel-headshotElliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. The law firm represents clients in all aspects of wills, trust and estates in estate cases. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Guardianship Denied

Denied guardianshipA guardianship case was brought in Kings County before Surrogate Margarita Lopez-Torrez pursuant Section 17A of the Surrogate’s Court Procedure Act.  In this proceeding the petitioners asked to be appointed guardians of Elit.  Surrogate Margarita Lopez-Torez found this would result in the complete removal of Elit’s legal rights to make any decisions over his affairs.  Justice Margarita Lopez-Torrez ruled a court was not allowed to limit or tailor a guardianship’s scope to Elit’s specific needs.  She held that Article 17A guardianships are distinguishable from Article 81 guardianship that can expressly provide a tailored approach to meet the alleged incompetent’s personal needs.

The Judge’s Ruling

Surrogate Margarita Lopez-Torrez ruled the legal standard was not that petitioners could make better decisions than Elit.  The standard was does Elit have the capacity to make his own decisions.  Surrogate Lopez-Torrez found the evidence presented to the court did not show Elit had an inability to make decisions on his own with regard to supporting himself.  She stated no actual harm resulted from the decision making shown by the evidence presented to the court.

She also stated there was no harm to Elit which would be prevented by the appointment of a guardian.  Surrogate Lopez-Torrez found Elit was an adult with some cognitive limitations, but she found Elit had decision making capacity which allowed him to manage his own affairs with the sufficient and reliable support of family members.  Elit was already consulting with the petitioners with regard to the managing of his affairs.  In the end Surrogate Lopez-Torrez found imposing a guardianship of Elit was not in his best interests.  The petition to be appointed guardian under Article 17A of the Surrogate’s Court Procedure Act by the petitioners was dismissed.

Conclusion

There are 2 types of guardianship.  One under 17A of the Surrogate’s Court Procedure Act and the second one under Article 81 of the Mental Hygiene Law.  In this case a guardianship under Article 81 of the Mental Hygiene Law had a better chance of success than the procedure brought under Article 17A of the Surrogate’s Court Procedure Act.

Elliot S. Schlissel, Esq. is a guardianship caseguardianship lawyer.  He represents individuals regarding  guardianship issues throughout the Metropolitan New York area.  He has been dealing with guardianship matters for more than 30 years.  He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Administrator of Estate Removed

In a case before Surrogate Melinda Malaze-Gonzalez, who sits in Bronx County New York, a son who was co-administrator of an estate asked the court to remove letters of administration issued to his sister, the decedent’s daughter. It should be noted the co-administrators were the brother and sister and the sole beneficiaries of the estate.

The Estate Had Real Estate Assets.

The primary assets of the estate were real estate holdings. The brother and sister had entered into a stipulation. The stipulation called for each on them to be co-administrators of the estate of their parent. The court granted letters of administration to both the brother and the sister. There were restrictions in the letters of administration concerning the real estate owned by the decedent.

Brother Seeks To Remove His Sister

The brother brought a legal action seeking to remove his sister as the co-administrator of the estate. The sister failed to retain an attorney to oppose her brother’s proceeding to have her removed. Justice Malaze-Gonzalez found the son’s allegations were not in controversy. She also found the sister’s refusal to take necessary steps to collect and distribute the estate’s assets was in violation of her fiduciary obligations. In addition, Judge Malaze-Gonzalez found a failure to state any reason why the assets of the estate should be retained constituted the basis of granting the son’s application to have her removed as the co-administrator due to her failure to understand what her fiduciary duties were.

schlissel-headshotElliot S. Schlissel, Esq. is an estate’s lawyer. He represents individuals probating wills, challenging wills, filing intestacy proceedings and all other estate related matters throughout the Metropolitan New York area. He has been helping his clients for more than 3 decades in these endeavors. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Legal Action to Disqualify Mother from Inheriting from her Dead Son

Legal Action to DisqualifyA proceeding to probate a will was brought in Ulster County New York before Surrogate Sarah McGinty. The son who died was 48 years old. The attesting witnesses to the will were the chief beneficiaries of the will. Beneficiaries to a will cannot act as witnesses to the will. Therefore, under New York State law the bequests left to these 2 individuals were invalidated. This caused the estate of the decedent worth approximately $1 million to pass through intestacy (as if the decedent died without a will). The decedent’s mother therefore was the only person who would inherit from her son’s estate.

Second Son Claimed Mother Abandoned Her Children

Another son of the mother claimed his mother abandoned her children and therefore should be barred from inheriting under the theory of parental disqualification, pursuant to the New York States Powers and Trusts Law. This son, Michael, filed a petition in the Surrogate’s Court of Ulster County. He asked for declaratory relief claiming he and his siblings should qualify as distributees and inherit the portion of the estate passing under intestacy. He made the claim that he and his brothers and sisters should inherit instead of their mother.

The Court’s Decision

The Judge’s decision denied the son’s application to disqualify his mother on the basis of abandonment and on the basis of failure to support the children. She found the mother was qualified to inherit from her son in intestacy. Judge McGinty noted the Catholic Welfare Bureau never gave up on the mother. She also never gave up on her son. The mother was not obligated to contribute to the financial support of her son. The Judge found the mother did not have the ability to contribute to her son’s support.

Conclusion

In the State of New York there are very specific rules with regard to the preparation, execution and attestation to wills. Individuals who are beneficiaries of a will cannot be witnesses to the execution of a will. This disqualifies them from inheriting. For this reason and many other reasons a will should only be prepared by attorneys with experience in handling estate matters. In this case there was a $1 million estate that the two individuals who acted as attesting witnesses were barred from inheriting.

schlissel-headshotElliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. He has been writing wills and representing clients in estate matters, including but not limited to probate proceedings for more than 35 years. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Accounting Proceedings Regarding Estates

accounting-proceedingsIn the State of New York the executor named in the will or the administrator of an intestate estate (someone who died without a will) has an obligation to organize and collect all of the estate’s assets. Thereafter the executor or administrator acting as fiduciary pays the bills and expenses of the estate and distributes the net estate to the beneficiaries of the estate. The administrator or executor of the estate usually prepares an accounting of the actions he or she took with regard to the estate. The accounting reports all of the assets and income collected on the estate. It then shows all of the expenses and claims by creditors that were paid. In addition, it shows the amount of funds which remain after all the estate expenses are paid and these funds remain in the estate which are to be distributed to the beneficiaries of the estate. In the event it is an administration proceeding the balance of the funds are paid to the beneficiaries under the laws of intestacy in the State of New York.

Objections to Accounting

Sometimes beneficiaries and/or creditors have objections to the accounting. Accounting proceedings can be brought in the Surrogate’s Court. Under these proceedings the administrator or executor may have to testify under oath as to the actions he or she took with regard to the estate’s assets.

Maintaining the Appropriate Records

Estate administrators and executors have to maintain accurate detailed records of all the transactions involving the estate. The failure to maintain accurate records can prevent the executor or administrator from establishing all the things he or she has done during the course of the accounting proceeding.

Conclusion

Unless the executor or the administrator of an estate is very organized, precise and detailed, it is usually in their best interest to have all issues concerning the payment of bills and distributions of the assets of the estate handled by an estate’s lawyer on their behalf.

schlissel-headshotElliot S. Schlissel is the managing partner of Schlissel DeCorpo LLP. The law firm represents clients in estate proceedings throughout the Metropolitan New York area. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Photocopy of Will Admitted to Probate: Original Will Lost in Storm, Not Destroyed or Revoked by Testate

Trusts-ExplainedIn a case before Surrogate’s Court Judge Peter Kelly in Queens County, the children of decedent sought to probate a photocopy of a will. A hearing was held before Surrogate Peter Kelly as to whether a photocopy of a lost will could be submitted to probate. The general rule with regard to lost wills is there is a presumption the person who made out the will destroyed the will and therefore a photocopy of the will is usually not allowed to be probated.

Original Will Destroyed

There was testimony of witnesses the original will was lost on the first floor of the decedent’s home which was destroyed during Superstorm Sandy. Justice Peter Kelly found the children of the decedent clearly and convincably proved the original will was not revoked by their father or at their father’s directions but was destroyed by the force of nature. Justice Kelly therefore ruled that the copy of the will offered was a true and complete copy of the decedent’s original will and could be admitted to be probated.

Conclusion

If a will is lost or destroyed through no fault of the maker of the will, it is possible to probate a copy of the will.

schlissel-headshotElliot S. Schlissel represents clients in the drafting of wills, trusts and estates as well as the probating of wills. He can be reached for a free consultation at 800-344-6431 or emailed at Elliot@sdnylaw.com.

Trusts Explained

Trusts-Explained

Trusts are sophisticated estate planning vehicles. They are established to provide a variety of different schemes. Trusts are usually more complicated estate planning documents then simple wills.

The Grantor

The person setting up a trust is referred to either as the grantor or settler. The grantor appoints individuals to be trustees and successor trustees. The grantor also names individuals who will be the beneficiaries of the trust.

Trusts are often part of an estate plan. The estate plan can involve, in addition to the trust, a will, a power of attorney, a health care proxy and a living will. Sometimes deeds have to be redone to allow the real estate to be placed into a trust.

Funding the Trust

Trusts are funded by the transferring of assets into the trust. Deeds can be modified to be placed into a trust. Bank accounts, stock portfolios, and all types of other assets can be placed into a trust.

Revocable vs. Irrevocable Trusts

The differences between revocable trusts and irrevocable trusts have to do with whether the trust can be changed, modified or revoked. Revocable trusts can be changed, modified or cancelled. Irrevocable trusts can usually not be changed, modified or cancelled without difficulties.

Testamentary Trusts vs. Lifetime Trusts

Testamentary trusts are trusts that are created in wills. Inter-vivos trusts which are sometimes referred to as lifetime trusts are created during the course of someone’s lifetime separate and apart from a will.

Creating and Understanding Trusts

Trusts are complicated documents and they should only be drafted by an experienced estates attorney. Trying to create a trust on your own would be equivalent to performing surgery on yourself.

schlissel-headshot

Elliot S. Schlissel, Esq. is a member of a member of the National Academy of Elder Law Attorneys. He has been drafting wills, trusts and other estate documents for clients for more than 30 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Accounting Proceedings

Accounting-Proceedings

The individual in charge of gathering the assets in an estate, trust or a will is called a fiduciary. Fiduciaries have administrative duties to see to it estates, wills and trusts are handled appropriately. They have a special responsibility for dealing honestly and responsibly with the estate assets. They often are responsible for collecting, managing and distributing the assets of an estate. The fiduciary can be the executor of an estate, the administrator of an estate or a trustee. Sometimes fiduciaries do not carry out their duties appropriately. If a fiduciary does not carry out the terms of the will, or a trust or the intestate distribution (dying without a will) appropriately they may be in violation of their fiduciaries duties.

Examples of a Fiduciary Breaching His or Her Duties:

  • Failure to follow the terms of a will, trust or deviating from intestate distribution responsibilities
  • Taking action regarding the property of an estate without obtaining the appropriate approval of the beneficiaries
  • Mishandling of assets of the estate
  • Failure to move forward with the administration of the estate or trust in a prompt manner
  • Failure to keep the beneficiaries up to date with regard to the handling of the estate or trust

Court Intervention Regarding Fiduciaries

If a fiduciary is not carrying out his or her duties in an appropriate fashion, any beneficiary can take legal action to deal with these issues. One of the types of legal action a beneficiary can bring is called an accounting proceeding. The beneficiary can ask the Surrogate’s Court to intervene and take action against the fiduciary if they have failed to fulfill their obligations. The fiduciary can be surcharged and/or removed from his or her position as a fiduciary. If an accounting proceeding is brought, the fiduciary should in a reasonable period of time provide a copy of the accounting to the beneficiaries. In some situations if a fiduciary engages in inappropriate activities concerning estate assets he or she can be charged for these losses. In these situations a fiduciary has to reimburse the estate for the loss of the estate assets.

Amicable Resolution of Estate Matters

The best way to deal with estate problems is to try to reach amicable resolutions of issues outside of the courthouse. Litigation is expensive and time consuming. However, if the situation rises where an estate or trust matter cannot be resolved amicably, aggressive legal action can be taken to deal with these issues.

Elliot-Schlissel

Elliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. The law firm has more than 35 years of experience dealing with all types of issues involving wills, trusts and estate matters. They can be reached for a free consultation either 516-561-6645, 718-350-2802 or 631-319-8262. He can be e-mailed at Elliot@sdnylaw.com.

Executor Removed

In a case before Surrogate John Czygier, Jr. who sits in Suffolk County a proceeding was brought by the brother of the named fiduciary in an estate.  The decedent’s brother was the executor on the estate.  The petition sought to remove the brother and to have him appointed as the successor executor to his brother.

The allegations were his brother failed to fulfill his duties as executor.  The petition claimed the brother failed to leave the decedent’s residence.  The decedent’s residence was the only asset of significance in the estate.  The brother also did not engage in any action to sell the decedent’s residence.  In addition, the brother lived in the house without making any contribution either personal or from estate assets towards paying the estate taxes.

 

Damaging the Estate

The named executor did not take action to make distributions of estate assets.  The petition claimed as a result these inactions there was significant harm done to the estate.  This harm had an adverse effect on the assets beneficiaries anticipated receiving.

 

The Judge’s Decision

Surrogate Czygier in his decision stated a fiduciary can be removed without a hearing where the conduct of said fiduciary is established by undisputed facts.  He went on to state a petition was deemed “due proof of the facts stated” unless an answer, objection or other proof or documentation was submitted.  In this case he found the fiduciary did not oppose the relief.  The fiduciary also failed to appear on the scheduled court date for the proceeding.  Justice Czygier in his decision wrote that due to the absence of opposition the brother who was named as the alternate executor in the decedent’s will was entitled to successor letters testamentary naming him has the new executor.  Previous letters testamentary given to the original executor were therefore revoked.

 

 

Elliot SchlisselElliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP.  The law firm has more than 35 years of experience dealing with all types of issues involving wills, trusts and estate matters.  They can be reached for a free consultation either  516-561-6645631-319-8262 or 718-350-2801.

VIDEO: What’s Involved in Preparing A Will in New York?

Elliot Schlissel discusses what is involved in preparing a will in New York.

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