Money From Estates Of Murdered Children To Go To Their Father

estate litigation lawyerLeatrice Brewer drowned her three children, Jewell Ward, Michael Demesyeux, and Innocent Demesyeux, Jr. In 2009, Ms. Brewer plead not guilty by reason by mental illness for the murdering of these three children. There had been an investigation by Child Protective Services regarding Ms. Brewer however, the investigation was incomplete and did not disclose the level of abuse which existed.

Wrongful Death Monetary Settlement

There have been wrongful death monetary settlements with regard to the deaths of these three children in Nassau County, New York. There has been approximately $350,000 recovered regarding this situation by the victims’ estate.

On November 9, 2015, an agreement was worked out where Demesyeux Sr., the father of two of the deceased children, would receive $100,000 from the estate’s assets. This settlement was approved by Nassau County Surrogate Court Judge Edward McCarty, III.
It was originally thought that Mr. Demesyeux Sr. had abandoned his children. However, this was not the case. Mr. Demesyeux Sr. took responsibility for burying his children and then standing up and defending his role as the father of his children in court.

Even though Leatrice Brewer was never convicted of murdering her children, Surrogate McCarty ruled in 2013 that she was not entitled to estate money because it would be “repugnant to decency.” In New York State convicted criminals can’t profit from their wrongdoing. This case is unique because Ms. Brewer was never actually convicted of killing her children.

Ms. Brewer is confined to a mental facility in upstate New York. She claims she was sick and killed her children while she was sick. She claims she is healing now by praying to God and asking for his forgiveness.estates attorney on Long Island

Elliot Schlissel, Esq is an estate attorney representing clients regarding will issues, trusts and estate matters in the metropolitan New York area.

Probate Issues

New York estates attorneyAn estate proceeding was brought in Queens County, New York before Surrogate Peter Kelly. In this case the executor, the son of the decedent, asked that his mother’s 2012 Will be probated. The sister had objected to the probating of the Will. She alleged in her application before Judge Kelly that her mother lacked testamentary capacity, there was a mistake, and that the Will was not properly executed.

The Judge’s Decision

Justice Kelly examined the proof submitted concerning the son’s application to probate the Will. He found the attorney draftsman had announced in the decedent’s presence to the other subscribing witnesses the decedent was executing a Will and this was sufficient to satisfy the requirement of an expressed declaration by the decedent that this was her Will. He also found that at a deposition the attesting witnesses established the decedent had the appropriate testamentary capacity to execute a Will. Justice Kelly concluded that the Will was properly executed by the executor’s mother. He also found she had the appropriate capacity to prepare a Will. He dismissed the objections made by the mother’s daughter.

The daughter claimed the instrument was executed by her mother as a mistake because she didn’t understand the contents of the Will. Justice Kelly found these objections made by the decedent’s daughter were “essentially nonsensical”. He went on further to state that a Will, when properly executed, will not be denied to be probated. He found the terms of the Will had to be construed as they were written in the Will. His decision stated “what the testator has done, not what she meant but failed to do is to be given effect.” He granted the petition for probate made by the son and dismissed the cross-petition challenging the probate of the Will made by the decedent’s daughter.Long Island Wills and Estates lawyer

After a Loved One Passes

Losing a loved one can be an extremely difficult experience. In some situations after your loved one passes, their next of kin is called upon to supervise the estate of the deceased. After the funeral takes place, the individual charged with handling the estate of the deceased has to first find the assets and gather them together within the confines of the estate. Thereafter he or she must pay creditors and authenticate who the beneficiaries to the estate are. If the decedent wrote a will, the process begins by probating the will.

The Probate Process

The first step in the probate process is to locate the original Will and file the Will with the Surrogate’s Court located in the county where the decedent resided before his or her death. In addition to filing the Will, a probate petition must accompany the Will. If the court accepts the probate petition, the case will be placed on the court’s calendar. The beneficiaries and next of kin will need to receive notice of this upcoming court date. On the return date of the probate petition, if there are no challenges to the will, the court will render a decision authorizing the executor named in the Will to be appointed to fulfill the terms and functions of the Will. The executor will determine the assets of the estate and gather them together. These assets may involve selling real estate, liquidating bank accounts, stocks, bonds and mutual funds, and various other types of assets. If there are expenses related to the decedent’s final illness, these expenses must be paid. Tax returns for the year in which the decedent died must be filed and if taxes are due, they must be paid. If the estate is a large estate, there may be estate taxes due and owing. At the end of the probate process the executor must prepare an accounting of the assets received, the payments which have been made to creditors, and lay out the scheme for the payment of the balance of the funds of the estate to the beneficiaries named in the Will.

No Will Causes Administration Proceedings

Administration proceedings are similar to probate proceedings, however they are a bit more complicated. Since no one has been named by the decedent to handle his or her estate, the next of kin and/or other family members may approach the court and seek to be named the administrator of the estate. This sometimes causes disputes among those individuals who seek to control and administrate the decedent’s estate.

In both probate and administration proceedings, family members who don’t feel they received their fair share of the estate sometimes come forward and challenge the estate proceeding.

Dealing with Estate Issues

I would not recommend an executor or administrator try to handle either the probate of a Will or the administration of an estate without the guidance and legal representation by an experienced estates attorney. If the administrator or executor makes a mistake, he or she can be personally liable for financial damages. The cost of hiring an attorney to represent the estate are paid by the assets in the estate, not by the funds belonging to the administrator or executor.new york estates attorney

Guardianship Proceedings

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his attorneys have more than 100 years of combined legal experience handling all aspects of guardianship proceedings, estate planning and estate litigation.  Please call to schedule a consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

Living Wills

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Elliot S. Schlissel is an attorney with more than 35 years experience in estate planning and all aspects of estate litigation.  He and his associates are available for consultation by calling 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.

Estate Planning: What Is It?

wills and trusts lawyerEstate planning involves making decisions concerning a variety of personal matters and financial issues to deal with issues involving your demise. A Will is a basic document which allows you to decide during your lifetime who will receive your money and your property in the event of your death. It also allows you to appoint someone to be in charge of the handling of your final arrangements and the final distribution of your assets in your estate. This individual is called an executor.

Probate

Probate is the court process which authenticates the validity of a Will. If you don’t have a Will it is considered that you died “intestate”. If you die intestate, an administration proceeding needs to be brought in the Surrogate’s Court to determine who your next of kin are so they will be able to receive your assets. Individuals who die intestate have their assets passed down under New York State’s laws of inheritance.

Trusts

Trusts are another example of a testamentary device. Trusts are more sophisticated testamentary devices than Wills. Trusts can be used to prevent assets from being taken by creditors, leave assets to special needs children and special needs adults, and to give the decedent control as to how his or her assets are utilized after his or her death.

Powers of Attorney, Healthcare Proxies and Living Wills

Powers of attorney, healthcare proxies and living wills are designed to help seniors manage their money and medical decisions should they become unable due to illness or disability to handle these matters on their own.

Estate Planning Attorneys

The best way to deal with estate related issues is to consult with an experienced estate planning attorney and discuss the variety of issues which can impact on one’s assets, children, financial affairs, taxes and other issues related to moving assets from one generation to another.

estate planning lawyerElliot Schlissel is a member of the National Academy of Elder Law Attorneys.

Misconceptions Regarding Wills

To watch today’s video blog, please click on the link below:

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his attorneys have more than 100 years of combined legal experience handling all aspects of estate planning and estate litigation.  Please call to schedule a consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

Requirements When Preparing a Will

To watch today’s video blog, please click on the link below:

https://youtu.be/pUnOQlVlAkg

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He and his associates are available for consultation at 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.

Ex-Wife Not Entitled to Life Insurance Proceeds of Deceased Former Husband

estate lawyer in New YorkIn a case in Erie County, New York, before Surrogate Barbara Howe, an estate sought to have the decedent’s ex-wife turn over the life insurance proceeds to the estate which she had received as a result of decedent’s death. In this case, the decedent left his entire estate to one of his sisters. She brought an application to the Surrogate’s Court to force the ex-wife, to turn over to the estate all of the funds she received as the beneficiary of the decedent’s life insurance policies. The ex-wife, through her attorneys, claimed she was entitled to the benefits as the decedent made an affirmative choice not to remove her as the beneficiary.

The decedent’s sister asserted that the ex-wife’s legal basis to receive the life insurance proceeds was terminated upon entry of a judgement of divorce in the County Clerk’s office. The court referred to Section 5-1.4 of the Estate, Powers and Trusts Law and the legislative history with regard to the enactment of this section of the EPTL. Surrogate Barbara Howe found that for an ex-wife to inherit she must prove the decedent took affirmative action after the divorce to ensure the ex-spouse would retain her status as the beneficiary on the pre-divorce life insurance policy. In this case, the decedent did not do so. Therefore the pre-divorce beneficiary designation was ruled a nullity. Judge Howe in her decision went on to state the ex-wife did not meet the standard under EPTL 5-1.4 with regard to the ex-spouse taking action after the divorce to reinstate her as the beneficiary. Judge Howe found the ex-wife had been bought out of the life insurance policy during the divorce case and she no longer had any marital interest in the life insurance policy. The policy was decedent’s separate property. Surrogate Howe ordered the ex-wife to repay the estate the full amount of the life insurance proceeds she had received.

Conclusion

To be safe, if you are getting divorced, remove your ex-spouse as beneficiary on all financial documents, deeds, bank accounts, securities accounts and all other financial instruments of every type and nature.estate planning attorney on Long Island

Divorce’s Impact on Wills and Other Testamentary Devices

Let’s say you get divorced but you don’t modify your will or change your bank accounts. What happens at the time of your death if your ex-wife is the beneficiary of your will and other assets are held jointly with your ex-wife?

New York State Law

Under New York State Estate Powers and Trusts Law Section 5-1.4, unless a will expressly states otherwise, divorce, judicial separation or annulment of a marriage revokes all dispositions or appointments of property made by the divorced spouse to a former spouse. Your former spouse would be treated as if he or she died before you. This means that any clause which would have named your former spouse as a beneficiary under you Will is revoked.

In addition, if you are divorced, your ex-spouse also loses his or her rights to inherit from your bank accounts, life insurance policies, revokable trusts, and real estate interests involving joint tenancies.

Housekeeping Needed After Your Divorce

If you get divorced, it is important to go through all of your financial documents and records. Your ex-spouse’s name should be removed from being a beneficiary on your life insurance. You should also notify your health insurance carrier that he or she is no longer married to you. In addition, you should remove your spouse’s name from your bank accounts, securities accounts, and financial accounts of every type and nature. If you have a Will, you should meet with the attorney who drafted the Will and draft a new Will.

Between the attorneys fees involved in the divorce, the child support, spousal maintenance, and division of assets pursuant to the terms of the divorce, your net worth will be diminished. You should carefully review all of your financial assets to make sure that upon your death, your ex-wife will not be in a position to seek to try to inherit and possibly cause litigation. Even though if you don’t disinherit her, the statutes in New York cause her to be disinherited, it is still better to change the documents to avoid the potential complications and legal expenses.estate planning attorney

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