Legal Action to Disqualify Mother from Inheriting from her Dead Son

July 11, 2019 By

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.

Filed Under: Probate, Wills Tagged With: ,

Accounting Proceedings Regarding Estates

November 27, 2018 By

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.

Filed Under: Executor Tagged With:

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

November 2, 2018 By

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.

Filed Under: Probate Tagged With:

Trusts Explained

October 24, 2018 By

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.

Filed Under: Estate Attorneys Tagged With:

Accounting Proceedings

October 22, 2018 By

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.

Filed Under: Trusts, Wills Tagged With: ,

Executor Removed

September 18, 2018 By

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  516-561-6645, 631-319-8262 or 718-350-2801.

Filed Under: Contesting A Will in NY, Wills

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

May 16, 2018 By

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

Filed Under: Wills

Contesting A Will

May 11, 2018 By

Contesting a Will

There are a variety of reasons or grounds to contest a will. Will contests often take place when there are blended families. Second families as a result of second marriages often complicate issues in estates.

Wills Need to be Properly Executed

New York has very specific requirements with regard to the preparation and execution of a will. The will must be signed by the person making the will at the end. It must be witnessed by at least two (2) witnesses who sign the will at the end of the document. The failure to have the will properly executed by the individual making the will and two (2) witnesses is a grounds for challenging the will. The will also must be clear and precise as to who receives the assets of the maker of the will.

Not Competent to Make a Will

The person writing the will must have testamentary capacity. If he or she is delusional, senile, of unsound mind or doesn’t know what he or she is doing at the time the will is written, there is a basis for setting the will aside. To make a valid will the person making the will must understand the nature and extent of his or her assets, who his or her children are, who their next of kin are and what they are doing when they execute the will.

Fraud, Duress and Undue Influence

The person making the will needs to have independent ability to make decisions concerning who will receive his or her assets. If an individual is coerced or compelled to execute a wilI the will can be set aside. Proving fraud, duress and/or undue influence requires a lot of legal skill and specific knowledge of the laws concerning contested wills.

Difficulty in Setting a Will Aside

Elliot Schlissel

If someone seeks to probate a will, if the will is properly executed, there is presumption the will is valid. Challenging a will means proving to a court the will is either improperly executed, the maker of the will is mentally incompetent or there was fraud, duress or undue influence. The burden of proof to set aside a will falls upon the individuals challenging the will. It should be pointed out the large majority of wills submitted to probate are accepted by the court and only a very small minority are set aside in contested probate cases.

The law offices of Schlissel DeCorpo LLP for more than 30 years have been probating wills and litigating will contests. Our office offers free consultations and we have offices in Queens, Nassau and Suffolk Counties and we can be reached at: 516-561-6645, 631-319-8262 and 718-350-2801. You can e-mail me at: Elliot@sdnylaw.com.

Filed Under: Will Contests, Wills

Protecting Beneficiary Rights

May 10, 2018 By

Protecting Beneficiary

A family member of yours has died. You are now wondering whether you are going to inherit from this individual. What do you do to protect your rights? The laws in the State of New York protect the rights of beneficiaries. If the beneficiary’s rights are violated he or she can take the appropriate legal action to see to it they receive the inheritance they are entitled to. The estate administration process can be a complicated long, drawn out court proceeding.

Problems Among Family Members

Estate matters can result in difficult personal issues among family members. If you are denied assets which were promised to you by a loved one before he or she died, legal action may be necessary to protect your interests. It is extremely important if you have not received the inheritance that was anticipated that you contact an estates attorney as soon as possible. There are a variety of time limitations built into the laws in the State of New York to take the appropriate legal action to protect beneficiary rights. If those time limitations have expired you may not be able to pursue the inheritance that pyou are entitled to.

The Probate Process

Attorney Elliot Schlissel

The purpose of the probate process is for the court to test the legitimacy of a will. The probate process involves the determination regarding who are the appropriate beneficiaries to inherit the estate. An individual who received notice of the probate proceeding who believes his or her rights have been violated must take legal action during the course of the probate process if they wish to have a judge deal with their contentions. There are many issues which can be brought to the court’s attention during the probate process including issues involving whether the executor is an honest appropriate person to be appointed to handle the administration of the estate.

Contact Us

Should you have questions on an estate matter feel free to contact our law office for a free consultation. We can be reached at our Nassau, Queens and Suffolk offices at 516-561-6645, 718-350-2802 or 631-319-8262. We can also be e-mailed at Elliot@sdnylaw.com.

Filed Under: Probate Tagged With:

What is Probate?

May 2, 2018 By

What is Probate?

Probating a will means bringing an action in the Surrogate’s Court in the county where the individual died to establish the validity of a decedent’s will. The probate process involves the distribution of the estate assets pursuant to the terms of the Last Will and Testament of the decedent. The probate process in New York is not a simple process. The process is designed to see to it that the wishes of the decedent are carried out. Should there be disagreements among the beneficiaries or heirs of the decedent, the probate process becomes even more difficult.

The Probate Process

The probate process involves preparation of petitions to the court. The original will need to be filed with the court as part of the probate petition. The proposed executor who is probating the will obtains from the court a return date for the probate petition. The next of kin and/or the beneficiaries to the will need to be served with the probate petition prior to the return date of the petition in court. On the return date of the petition in court individuals who seek to challenge the will can advise the judge of their position. If the will isn’t challenged, an order is submitted to the court appointing the executor

Executor’s Duties.

Once the executor is appointed he or she first gathers the assets and then liquidates them. Thereafter the executor ascertains who the creditors of the estate are and pays the creditors. Seven (7) months after probate of the will, the executor can start making distributions of assets stated in the will to the named beneficiaries. At the time beneficiaries are to receive their distributions they are usually requested to sign a receipt and release which indicates the executor has properly handled the estate proceeding and has made the appropriate distributions to the beneficiaries.

Conclusion

Attorney Elliot Schlissel

The probate process which is designed to see to it that beneficiaries in estates are treated fairly is not a simple process in the State of New York. Whether you are an executor, beneficiary or someone seeking to challenge the will it is strongly recommended you hire an estates attorney to protect your rights.

Elliot S. Schlissel has been representing executors, administrators, beneficiaries and potential beneficiaries in estate cases throughout the Metropolitan New York area for more than 3 decades. He can be reached at 800-344-6431 or Elliot@sdnylaw.com

Filed Under: Probate Tagged With:
« Previous Page
Next Page »