How To Avoid Probate in New York – Part II

trusts and estate attorneyTestamentary Substitutes

  • Payable on death accounts. A payable on death account is a bank account maintained in one individual’s control which has specific instructions about when that individual dies, it gets paid to a specific beneficiary. The beneficiary has no rights until the individual who opened the account dies.
  • Joint ownership of assets. Property in New York held jointly with rights of survivorship means there are usually two individuals who are the owners of this type of property. The property can be real estate or it can be a bank account. When one of these individuals dies, the surviving individual inherits all of the assets. Another type of joint ownership in New York is referred to as tenancy by the entirety. This refers to assets held in the name of a husband and wife. Under a tenancy by the entirety each of the parties are considered to own 100% of the asset. Therefore when one of the parties dies, the other party still owns 100% of the assets. In cases involving either joint ownership with rights of survivorship or tenancy by the entirety, probate of these assets is not necessary.


Probate delays and the expenses related to probating wills can be avoided. If you seek to avoid probate, you should retain an experienced estates or elder law attorney to develop a comprehensive estate plan for you and/or your spouse. This is not something you can successfully accomplish on your own.probate attorney in New York

How To Avoid Probate in New York – Part I

The probate process in New York can involve expenses, time delays and the opening up of family related issues to public scrutiny. There are a number of mechanisms which can be utilized to avoid probate. The following are examples of various types of legal measures which can be utilized to avoid probate:

  • Living trusts. In the State of New York, there are two different types of living trusts. One is a called a revocable living trust and the other is an irrevocable living trust. The difference between the two of them is the revocable living trust can be amended, modified or completely revoked by the individual who made the trust. The irrevocable trust can be amended and modified but it cannot be revoked. It is a permanent document. When these types of trusts are created, you turn your assets over to these trusts. This means you deed the house to the trust. Bank accounts, securities accounts and other investment vehicles can also be put in the trust’s name. At the time of the death of the creator of the trust, the trustee then takes action to carry out the terms of the trust which may involve the distribution of the trust assets to trust beneficiaries. This all takes place without the trust being subject to the probate process. Trusts are private documents. Wills are public documents which, after the individual dies, may be reviewed by anyone in the Surrogate’s Court. The distribution of assets in a trust is not supervised by the court. It is all handled privately. However, if there are challenges as to the manner in which the trust was handled, or the way the assets are distributed, legal action can be undertaken to deal with these issues.probate attorney

Doctor Assisted Suicide

Attorneys for a group of terminally ill individuals have taken legal action to prevent prosecution of physicians who provide assistance in dying to terminally ill, mentally competent individuals. The attorneys have sued 5 district attorneys and the attorney general for the State of New York to stop them from prosecution of physicians who provide assistance in dying to terminally ill patients. Kathryn Tucker, the Executive Director of the Disability Rights Legal Center, represents the plaintiffs. She recently stated “this case is about letting the patient, the individual, choose how they will cross the threshold to death when faced with the final ravages of terminal illness.”

Presently under New York law, terminally ill, mentally competent New York residents can opt to withdraw life prolonging medical procedures to hasten their death. Examples of medical assistance they can refuse to take involve the utilization of ventilators and feeding tubes. They can also ask for drugs to keep them in a deep sleep while they slowly die of hunger and thirst.

Doctor Assisted Suicide

New York has a statute which prevents doctor assisted suicide. It is an E felony to “promote a suicide attempt.” This is defined as intentionally causing or aiding another person to commit suicide. In addition, there is a second statute which classifies the act of intentionally causing or aiding another person to commit suicide as a C felony, also known as second degree manslaughter. A Class C felony can be punishable by a sentence of up to 15 years in prison, and a Class E felony can be punishable by a sentence of up to 4 years in prison. This lawsuit states there is no “valid statutory basis” to prosecute doctors who provide aid in dying because a mentally competent, terminally ill patient opting for a “peaceful death” does not constitute suicide. Ms. Tucker, when interviewed, stated the law in New York creates a “chill in the environment” which may make physicians fearful of assisting patients with suicide.

Aid in dying statutes make it legal to assist patients with suicide in the States of New Mexico, Oregon, Vermont, Washington and Montana. This lawsuit seeks to bring the State of New York into this group.

Elliot S. Schlissel is an elder law attorney. He helps clients with regard to wills and estate lawyer in New York

How Estate Litigation Works in Surrogate’s Court – Part II

estate litigation lawyerThe Trial

The trial will either be conducted before a jury or by a judge. There are certain issues an individual can request a jury for. If the claims at trial are that the executor, administrator or trustee embezzled funds or acted improperly, the court can order that individual to repay the estate or the trust for the funds which were improperly taken.

Estate litigation is complex and emotional. It usually takes place between loved ones who have a dispute over money. The difference between estate litigation and divorces is that in divorces loved ones fight over their money and in estate litigation the parties are litigating regarding other people’s money. The best way to deal with estate legal problems is to hire an experienced, dedicated estates attorney. When hiring an attorney you should investigate his or her background to make sure they are the right person to handle your case.   You should discuss with the attorney how many Surrogate’s Court cases he or she has tried, what type of estate cases he or she has tried and the results in these cases.

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He has been handling estate litigation, wills, trusts and other issues pertaining to estate planning for more than 35 years. estate and trust attorney


How Estate Litigation Works in Surrogate’s Court – Part I

The individual who files a lawsuit against an estate must prove to the court they have a sufficient basis for the lawsuit. Oftentimes individuals come into our office who are unhappy with someone’s will. They seek to challenge the will because they were either left out of the will or didn’t receive their fair share. Unfortunately, being unhappy with the terms of a will or not receiving one’s fair share is not considered a legal basis for challenging the will. There are specific grounds for challenging wills such as lack of mental capacity, undue influence, fraud, or duress. These legal theories are generally the basis for challenging a will.

Court Attorneys In Surrogate’s Court

When lawsuits are started in the Surrogate’s Court, the Surrogate’s Court sometimes appoints a court attorney to meet with the litigating parties to see if the matter can be mediated. Litigation is time consuming and expensive. Courts hope to promote settlements of cases to avoid cases going to trial.

If the case does not settle, there is an initial period during the litigation where each party can obtain discovery of information from the other party. Discovery demands can ask questions, ask that medical records and other documents be produced, and can go into the family background of the parties.

After the discovery period of the litigation is finished, the parties may engage in motion practice in Surrogate’s Court. If there is a will, a fiduciary can make a motion for summary judgment claiming the allegations made by the individuals challenging the will are false, without validity and the matter should be decided without the need for a trial.trusts and estates lawyer

Estate Litigation – Part I

trusts and estate attorneyThere are a variety of situations which result in litigation of estate related matters. The first, and most common, case which is litigated in the Surrogate’s Courts in New York State is a will contest or the challenging of a trust. The most common reason for challenging a will or a trust is lack of testamentary capacity or undue influence.

Testamentary Capacity

Testamentary capacity deals with whether the person making the will had the capacity to make the will on the day the will was executed. This challenge deals with the person who made the will’s understanding of what they were doing, who were the natural objects of their bounty, and the impact this will would have on the testamentary scheme.

Undue Influence

Undue influence deals with a situation where the person making the will has a diminished capacity. Another individual improperly influences them for the purpose of ingratiating themselves. Sometimes undue influence is based on either overt or perceived threats or intimidation.

Setting the Will Aside

Setting a will aside on either the basis of lack of testamentary capacity or undue influence requires the individuals challenging the will to produce documentary evidence proving their claim. Examples of the type of evidence utilized in these cases are medical records, records from pharmacies, financial documents, and testimony of third parties or other family members with regard to the circumstances and events concerning the decedent at the time the will was prepared and executed.

Altered Documents

Other types of proceedings brought to challenge wills deal with forgeries, improper alterations or modifications to the will, and questions concerning the improper destruction of the will, sometimes even after the decedent’s death.wills and estates lawyer

Will Requirements

There are a number of requirements necessary to write what is referred to as a self proving will.

I.   You must be of sound mind to write a will.

  • You must understand what you are putting into the will. You must know you are writing a will.
  • You must understand who your next of kin are and what your assets are.
  • You must be 18 years old, in the State of New York, to write a will.

II.   When executing a will, you must state that this is your will. You must acknowledge to the individuals witnessing your will the document in front of you is your will.

III.   You must sign the will at the end and date the will.

IV.   In the State of New York, the will must be attested to by a minimum of two witnesses. Good drafting requirements suggest you use three witnesses, should one of the witnesses become unavailable at a later date. It is important the witnesses be independent, neutral parties and not beneficiaries under your will.

  • The witnesses must see you execute the will and hear you state the document is your will.
  • The witnesses must sign the will after you sign the will, and sign the will in front of each other witness at the same time.

V.   If you have children, the will should:

  • appoint a guardian for your minor children in the event of your death.

VI.   Concerning your assets, the will should identify what your assets are and state who should inherit them.

VII.   Assets not specifically referred to in the will should also be distributed by the will.

VIII.   The appointment of an executor:

  • The executor is responsible for supervising the burial, the payment of your debts, and the distribution of your assets.


The question is, should I have a will or do I not really need a will? The answer is, you do need a will. If you have any type of assets, you should have a will to distribute them. If you have children, your will should name the guardians of your children in the event of your death. If you don’t have a will, the State of New York will determine who receives your assets and who raises your children. For peace of mind and doing what is in the best interest of your children and other family members, hire an experienced, qualified attorney and write a will. You will find it is not that painful and not very expensive.wills attorney in New York

Godmother Appointed Guardian of 40 Year Old With Down’s Syndrome

guardianship attorney on Long IslandA guardianship action was brought before Surrogate Rita Melia in the Surrogate’s Court of New York County. This guardianship was brought pursuant to Surrogate’s Court Procedure Act Article 17(a). The purpose of the proceeding was to determine who should be appointed the guardian of R.H., a 40 year old who suffered from Down’s Syndrome. Both of R.H.’s parents were deceased. R.H.’s brother had appeared during the course of the hearing via video conferencing. This was necessary because he was imprisoned at the time of the hearing. Justice Melia found due to the brother’s incarceration and conviction of a felony he was disqualified from serving as R.H.’s guardian. The brother had filed a cross-petition requesting the court appoint a designee on his behalf as the brother’s guardian.

Substantial Assets in the Parent’s Estate

The court took into consideration the fact R.H. needed a guardian because he had inherited a substantial estate from his deceased mother. The court found the brother who was incarcerated was going to inherit the other half. The brother had submitted arguments claiming the godmother was unfit to serve as the guardian. The court found these arguments unsupported by the evidence. The evidence presented showed the godmother and her spouse had provided R.H. with a nurturing place to live in and attended to his daily needs and care since the death of the mother. The court therefore concluded it was in R.H.’s best interest the godmother be appointed as the guardian. This was also supported by the guardian ad litem who had prepared a report for the court. The court therefore appointed the godmother as guardian of both the person and the property of R.H. upon her duly qualifying.

elder law attorney on Long IslandElliot S. Schlissel is an elder law attorney. His law firm has extensive experience in handling guardianship cases under both Article 81 of the New York Mental Hygiene Law as well as Article 17-a of the New York Surrogate’s Court Procedure Act. He represents individuals in all aspects of guardianship proceedings throughout the Metropolitan New York area.

Comparing Wills and Living Trusts

estate planning attorneyBoth wills and living trusts are testamentary devices which can be utilized to provide for the handing down of your assets to the next generation in your estate after your death. There are benefits to both wills and trusts.

A revocable living trust is commonly used as an alternative to maintaining just a simple will. The purpose of this article is to show you the advantages and disadvantages of each of these testamentary devices.


When you write a will, after your death, the will must be probated. Probate proceedings can be time consuming and involve legal expenses. Property you maintain in other states will require ancillary probate proceedings in those states. The benefit of a will is it gives a court a supervisory role to see to it the assets are properly managed and properly distributed to the rightful beneficiaries. Individuals who feel they are rightful beneficiaries who are left out of a will, have various grounds to challenge the will after it is probated in the Surrogate’s Court.

It should be noted wills are public records which are maintained in the court and are open to be viewed by other members of the public. It is usually recommended that individuals who execute wills also have healthcare proxies and powers of attorney to deal with other advance planning directives.

Wills cost less to draft than trusts. Wills also require no maintenance.

Revocable Living Trust

Revocable Living Trusts do not need to be probated. If you own out of state property and the property is maintained in the trust, an ancillary probate proceeding in the state the property is located in, is no longer necessary. A drawback of the trust is there is no court supervision. In the event there is fraud, undue influence, duress, or disputes, a court will not automatically be involved to deal with these issues. A benefit of the trust is it is a private document and it is not available to be reviewed by the public. While a will disposes of the assets at the time of death, a trust can control the assets for long periods of time after the individual dies. A trustee is appointed who controls the assets to see to it they are not misused, misapplied or mishandled by the beneficiaries. A trust basically sets up a scheme or a plan to have an individual take over the management of the assets after your death and continue to manage them for the period of time indicated in the trust. Simply stated, you get to control your assets after your death.

Trusts are significantly more expensive to draft, prepare, fund and manage than a will. Trusts may require some maintenance over time.

No Will, No Trust You Die Intestate

Intestacy is the term for an individual who dies without a will or trust. If you die without a will or a living trust the laws in the state in which you reside will determine who your beneficiaries are. These laws normally go along the traditional blood lines. If you have young children at the time of your death and there is no will or trust, the state will determine, pursuant to state law, who raises your children as their guardian. It may not be the person or persons you want. It may not be individuals you feel are trustworthy to handle your assets after your death or to take care of your children. Individuals appointed to take care of your children and to manage their affairs may also charge fees to control your assets.

Write a Will or Trust

If you care about your loved ones, or your assets, and/or you don’t want to leave your family in a mess when you die, you should write a will or a trust. It simplifies and clarifies your estate plan and sees to it the individuals you really want to inherit your assets actually get them.Estate planning attorney in Metropolitan New York

Philip Seymour Hoffman Disinherits His Children

estate planning attorneyIn February 2014, Philip Seymour Hoffman died. He had written a will in 2004. His will left all of his worldly assets to his “friend and companion” Mimi O’Donnell. Mimi was the mother to his three children. Mr. Hoffman’s lawyer and his accountant had made recommendations to create trusts for his children. Mr. Hoffman rejected their suggestions. He told them he did not want his children to become “trust fund kids.” To avoid spoiling his children, he intentionally left all of his assets to his girlfriend, Mimi. Prior to his death Mr. Hoffman met with his attorney to discuss his estate plan. During that interview, he again articulated his objections to setting up trusts funds for his children.

Hoffman Never Married

Hoffman never married Mimi. He had a long standing relationship with her and he trusted her. In a report submitted to the court by an attorney appointed to represent Mr. Hoffman’s children’s interests, the attorney stated Mr. Hoffman “simply did not believe in marriage but that did not affect his affinity or relationship for Ms. O’Donnell.” Hoffman’s lawyer stated Hoffman told him he wanted his son to be raised in the city with art and culture. On page 13 of Mr. Hoffman’s will it stated “it is my strong desire, and not my direction to my guardian, that my son Cooper Hoffman be raised and reside in or near the borough of Manhattan in the State of New York, or Chicago, Illinois, or San Francisco, California.”

Hoffman stated in his will “the purpose of this request is so that my son will be exposed to culture, arts, and architecture that such cities offer.”

Academy Award Winner

Philip Seymour Hoffman had obtained an academy award for his role in portraying Truman Capote in the movie Capote. He had also received three other academy award nominations. He was well respected as an actor’s actor by his peers. At the time of his death he was found on the floor of his apartment with a needle containing heroin in his arm. Investigation of his death uncovered fifty additional envelopes containing heroin in his apartment.

His death was a tragedy for all of the actors, directors, and other individuals in the movie industry who worked for him, with him and for his planning and trust attorney on Long Island