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

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.

Contesting A Will

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.

Probating a Will in New York

Signing Last Will and Testament

The probate process in New York is the legal procedure in which the assets of a person who is deceased gets distributed under court supervision. If the individual dies with a will the will will contain a clause naming an executor and if the executor is not available an alternative executor to supervise and control the probate process. If the individual dies without a will said individual’s spouse, a child or next of kin can bring an application to become the administrator of this deceased individual’s estate. Once appointed the executor or administrator of the estate has legal authority to organize, gather and value the assets of the decedent. In addition, he or she can pay bills, pay real estate taxes, federal and state income taxes and at the end of the estate process distribute the assets to the next of kin or the beneficiaries under the will.

Why Probate the Will?

The purpose of the probate process is to prevent fraud or improper actions regarding the assets of the decedent. It is the intent of the probate process to freeze the estate assets until a judge determines whether the will is a valid will and that all of the necessary individuals regarding the estate have been put on notice there are assets in the estate and they may have an interest in said assets. In addition, creditors must be notified and paid all taxes have to be paid before there can be distributions to the beneficiaries or the heirs of the estate.

Assets Not Part of the Estate

Bank accounts, investment accounts and other assets maintained in joint tenancy or in Attorney Elliot Schlisseljoint tenancy with rights of survivorship do not pass through the estate and/or probate process. In addition, accounts that have pay upon death designations or beneficiaries listed in them also do not pass through probate. Life insurance policies and most annuities are also dealt with outside the probate process.

Estate Problems

Should you have questions or issues regarding estate matters you can reach the law office of Schlissel DeCorpo LLP for a free consultation at any of our offices to discuss these problems. Our phone numbers are 516-561-6645, 718-350-2802 or 631-319-8262.

Do Your Debts Die With You?

Debts-Die

To start with your debts don’t die with you. They survive your death. If you have a Will the obligation to deal with your debts falls upon your executor after the Will is probated. If you have no Will an administration proceeding can be brought by the next of kin to appoint someone to handle your affairs.

Most Americans Die with Debts

If after you die your debts aren’t paid it will have a negative impact on your credit rating. But of course you won’t care about that because you will be dead! If you have assets your creditors can file a claim in your estate proceedings against the assets. In estate proceedings debts are paid before there is distribution of the assets to beneficiaries in a Will or next of kin in an administration proceeding.

Credit Card Debts

There is a statute called the Credit Card Act of 2009. This requires credit card companies to notify the estate quickly with regard to any debts of the deceased. The statute also prevents credit card companies from assessing additional fees of penalties while the estate proceedings are pending. There are situations where there are not enough liquid assets to pay the credit cards. In these cases the credit card companies may contact family members and request they pay the balance of the credit card debt. Be advised unless a family member has co-signed for the credit card, there is no obligation to pay these debts and family members will not be held liable by the credit card companies for these debts.

Unpaid Loans

If you have student loans which are pursuant to a federally backed student loan program these loans will be discharged upon your death. Private loans do not become discharged in the event of your death. Banks and other financial institutions will request payment from your estate. If there are no liquid assets to pay these debts from your estate and there is a co-signer on the loan they will go after the co-signer to pay the debt.

Mortgages and Car Loans

Mortgages and car loans are considered secured debts. The mortgage is secured by the home and the car loan is secured by the vehicle. In the event these types of loans are not paid the creditor can take legal action to repossess the car and foreclose on the house.

Doctors and Hospital Debts

Money owed to hospitals and/or medical providers are not discharged at the time of your death. These unpaid bills may become a lien against your estate. If there is a co-signer for these debts, the co-signer will be obligated to pay these debts upon your death.

Family Members Pressured to Pay Debts

Attorney Elliot Schlissel

Sometimes collection agencies and their telephone collectors seek to put pressure on family members to pay deceased relatives debts. Be advised, unless you co-sign for a loan you are not responsible to pay the debt of a deceased family member.,

Preparing a Will in New York

A simple will can be a very basic estate planning document. However the preparation and execution of a simple will in the State of New York requires very specific execution formalities. These execution formalities are so specific and detailed that it is essentially never recommended for a person to prepare and execute a will without the help of an attorney. Our office’s experience with wills prepared by individuals without the supervision of a lawyer is that these attempts generally lead to litigation because the wills were not properly executed in conformity with New York Law.

Formal Requirements for Will Execution

To start with a will must be in writing. It needs to be executed at the end by the person making the will. In addition there must be a minimum of two (2) attesting witnesses. Neither of these witnesses should be an individual who receives any assets or benefits under the terms of the will. The individual executing the will must state and declare that this is his or her last will and testament. In addition, the individual executing the will must have testamentary capacity and be aware and understand the contents of the will.

These are just some of the specific requirements concerning drafting and the execution of a will. The deviation from any one of these requirements can render a will invalid. An individual having a will that he or she believes is valid that turns out to be invalid may be worse off than if there was no will at all.

Conclusion

It is important to consult with an experienced estates attorney with regard to the drafting of wills and trusts. The preparation drafting of a simple will is a relatively inexpensive document to have an attorney prepare.

Attorney Elliot Schlissel

Elliot S. Schlissel, Esq. has been preparing wills and representing clients throughout the Metropolitan New York area in probate and wills proceedings for almost 4 decades.

Can a Copy of a Lost Will be Probated

Person signing a legal document

Original wills should be carefully preserved and maintained. The attorney who drafts the will usually will maintain the will in either a safe or fire proof file cabinet. However there are occasions when wills are lost or accidentally destroyed. When a will is destroyed or lost it is presumed that this action was taken by the testator (person whose will it is) to revoke the will. The law takes this position to avoid fraud regarding these matters. There are occasions when wills are left with attorneys and for one reason or another they are either lost or destroyed. An example of this is Hurricane Sandy flooding a storage facility that lawyer maintains wills at and the salt water destroying the will. In these cases the attorneys’ office will make a presentation to the court and show the testator did not know that the will was destroyed and he or she had no intention of revoking the will by its destruction. In addition the attorney’s office would show the testator (person who made the will) believed the will still existed at the time of his or her death at the law office and was properly secured.

The Presumption of Revocation of a Will

Section 1407 of the New York Surrogate’s Court Procedure Act deals with issues concerning wills that have been destroyed, lost or rendered unreadable. The section states:

“That a lost or destroyed will will be admissible to probate if it is established that the will has not been revoked, the will has been executed in the procedure provided by law and all of the provisions of the will are clearly and distinctly proved by each of at least two (2) credible witnesses or by a copy of a draft of a will proved to be true and accurate.”

This is a difficult standard to meet. The presumption of the revocation of a will if it cannot be produced is strongly enforced by the courts in New York. In addition to probate a will the individual who seek to have the will probated must establish the will was duly executed. In order to accomplish this goal the witnesses to the will need to submit an affidavit or testify. They specifically must state that they witnessed the testator execute the will. In addition they must testify or swear to in an affidavit that the testator was competent, acknowledged the document was a will, understood the terms and conditions in the will and had testamentary capacity to execute the will.

Conclusion

Attorney Elliot Schlissel

Copies of lost wills can be probated but it is difficult to do this.

Surviving Spouse’s Right of Election

Scales of justice

New York has a special statute which protects spouses from being disinherited. The name of this statute is called “The Right of Election”. Under this statute a spouse is entitled to a minimum “elective share” of the assets of his or her spouse. If a spouse is disinherited in a will or trust and or the spouse receives less of the decedent’s estate than he or she is entitled to, they can ask for their “elective share” under the right of election.

Elective share in New York

The right of election allows a spouse to challenge what she receives in a will. The right of election entitles the spouse to receive the greater of 50,000.00 or 1/3rd of the estate. In New York this only applies to individuals who are legally married. New York does not accept the existence of a common law marriage for estate purposes.

The request for an elective share includes both assets in the parties names and “testamentary substitutes”. Testamentary substitutes can be bank accounts, real estate and other types of assets that are designed to prevent the spouse from receiving his or her just share in an estate.

Exercising the Spousal Right of Election

When a spouse does not receive the value of $50,000.00 or one third of the estate, he or she can take action to file for their right of election against the estate. This right of election is exercised by the surviving spouse who has either been disinherited or has not inherited as much as he or she would receive in the elective share. An individual who seeks to exercise his or her elective share must take this action within six months after an executor or an administrator has been appointed to handle the estate. The six month period acts as a statute of limitations. Failure to take the appropriate action to claim one’s elective share during the six month period will bar them from claiming the elective share in the future.

The exercising of one’s rights to an elective share is not something that an individual should do on his or her own. Should you feel you have not received an adequate amount of inheritance from your spouse you should contact an estates attorney and meet with him or her to discuss your options and how to protect your interests.

NY Attorney Elliot Schlissel

Elliot S. Schlissel is an estates lawyer representing individuals in estate planning matters, will contests, accounting proceedings and all other estate related litigation issues throughout the metropolitan New York area.

Chat Banner

Can We Help You?