Happy Thanksgiving

Happy Thanksgiving 2021

This Thanksgiving, we are immensely grateful, that with all the changes in our world, we have friends and family with whom we can gather. Let us take time this year to live in gratitude for the bounty we experience all around us.

Happy Halloween!

Happy Halloween

Donative Intent Established Pursuant to Transfer Documents and Deed

Donative Intent Established Pursuant to Transfer Documents and DeedIn a case before Surrogate Peter Kelly, sitting in Queens County, a son named Charles was appointed a limited administrator. He was authorized to bring an inquiry regarding his brother John’s actions and the return to the estate of real estate titled in John’s name. The decedent died in 2018 leaving 5 children. John took action to have his brother Charles’ proceeding dismissed. This action was to set aside a 2010 deed under which the decedent transferred title to her home from herself to John, as joint tenants with right of survivorship. There was also a second deed in 2013 in which the decedent named John as a sole owner of the house.

Motion Practice In The Case

A motion was made for summary judgment claiming there were no issues of fact. Judge Peter Kelly rendered a decision that John established his prima facie burden of showing donative intent on the decedent’s part. He did this by submitting copies of the transfer documents related to the deeds and the testimony of the attorney who prepared the deeds, transfer documents and oversaw the execution of these documents.

The Courts Decision

The court held Charles’ submission of a handful of medical records showing the decedent struggled with agoraphobia and passing references to Alzheimer’s disease did not establish an issue of fact as to the decedent’s capability at the time of the questioned transactions to effectuate these transactions.

The Deeds Were Upheld

The deeds were upheld and the challenge related to this estate was dismissed.

The New Power of Attorney Form in New York

The New Power of Attorney Form in New YorkOn June 13th of 2021 the new power of attorney form in New York went into effect. This form does not make older powers of attorney obsolete. However, all powers of attorney executed after June 13, 2021 must be on this new form.

Action To Be Taken If Bank Doesn’t Accept It

Under the terms of this new power of attorney, if a bank or other financial institution refuses to accept it, a law suit can be brought against the bank. If the court finds in your favor that the bank improperly rejected the power of attorney, the court can award financial monetary damages as well as your attorneys fees.

The basic statutory gifting amount has been increased from $500 per year to $5000 per year. There is no specific statutory rider requirement in effect in New York with regard to powers of the agent to make gifts.

Agent’s Duties

The agent must maintain records when he or she uses the power of attorney on behalf of the individual who made the power of attorney. An agent must keep a record of all transactions conducted for the principal or keep all receipts of payments and transactions conducted for the principle.

The agent will be considered a personal representative of the principal for health care matters. Health care plans and healthcare providers must provide the agent with the necessary information needed to determine the legitimacy and accuracy of all financial charges and expenses for health related services.

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He has been working with seniors for more than 30 years.

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.

Season’s Greetings and Happy New Year

Season's Greetings and Happy New Year

Happy New Year 2020

Happy New Year 2020

May the holiday season fill your home with joy, your heart with love, and your life with laughter.

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.


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.


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.