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.

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

Misconceptions Regarding Wills

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

https://youtu.be/XRVj__nSeAY

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.

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

Wills Litigation

Please click on the link below to watch today’s video blog:

https://youtu.be/3Aqjn2mJVQA

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.

Handling An Estate in a Nutshell

estate administration attorneyAll human beings that live will eventually die.  When a loved one passes, dealing with his or her estate is not a task most people look forward to.  However, most people will, during the course of their lifetime, be involved with estate issues concerning a loved one.

When the grief passes, the issues involved are who are the heirs of the estate, what are the assets, how are they distributed, and what creditors need to be paid, become issues in the decedent’s estate.  If the individual dies with a Will, the process to validate the Will by the Court is called PROBATE.  If an individual dies without a Will, the process of determining who will inherit from his or her estate is called ADMINISTRATION.  If there is a Will, the Will will appoint an executor.  It will be the executor’s responsibility to hire an estates lawyer and to take the appropriate legal action regarding the estate.  If there is no Will, an individual who is next of kin to the decedent can ask to be appointed the administrator of the decedent’s estate.

Legal Work in the Estate

If you hire an attorney, he or she will draft a probate petition or a petition for the administration of the estate.  The petition will thereafter be filed in the Surrogate’s Court in the County in which the decedent was a resident of at the time of his or her death.

After the probate petition or administration petition is filed, next of kin and potential beneficiaries will be notified of a court date.  On that court date, any individual seeking to challenge either the appointment of the administrator in an administration proceeding, or the executor in a Will in a probate proceeding can appear in Court and advise the judge that he or she seeks to challenge the estate proceeding.

Executor’s and Administrator’s Duties

When the Will is accepted for probate, the executor or administrator’s duties are to find the assets, liquidate them, and obtain them for the benefit of the beneficiaries.  The technical aspects of handling the funds is usually dealt with by the attorney retained by the administrator or executor of the estate.  Assets of an estate can involve houses, money, stocks and bonds, insurance policies, jewelry, artwork, clothing and other personal items.

Real Estate Issues in Estates

If an individual owns real property outside of New York State (houses, land and other structures on land), an ancillary probate proceeding will be required to be undertaken in the State where the real estate is located.  Surrogate’s Courts in the State of New York only have jurisdiction over real property that lies within New York State.

Accounting of Assets Before Distribution to Beneficiaries

After all of the assets are amassed by the estate, and all of the creditors are paid, the administrator or executor thereafter needs to provide a simple accounting to the beneficiaries showing assets, liabilities and the amount which will be available to be distributed to the beneficiaries.

Fiduciary Responsibility

It should be noted an executor is a fiduciary.  In the event he or she makes mistakes or mishandles funds, they are personally liable to the beneficiaries of the estate for these actions.  It is therefore almost always advisable for the executor or administrator to hire an experienced estates attorney to assist him or her with regard to all aspects of the decedent’s estate.estate litigation lawyer

How to Handle an Improper Will

Please click on the link below to watch today’s video blog:

https://youtu.be/diSYdWiNpXU

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.

Handwritten Wills

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https://youtu.be/WYaYj8FP0fQ

Elliot S. Schlissel drafts wills and trusts and aids his clients in all aspects of estate planning.  Elliot handles estate litigation, including issues where a person has died without a will or with an improper will.  He and his associates have been handling these types of matters for nearly 40 years.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email at schlissel.law@att.net.

Documents Necessary To Probate A Will

Long Island Estate LawyerIn the State of New York, the probate process is undertaken in the Surrogate’s Court before a Surrogate Judge. Surrogate’s Court also supervises estates called intestate estates, where a Will was not drafted by the decedent. There are a variety of documents the Surrogate’s Court requires to facilitate the probate process. The most important document is the actual original Last Will and Testament. It will also be necessary to submit a raised seal original death certificate. The purpose of the submission of the death certificate is to prove that the individual who made the Will is deceased. In addition a probate petition will need to be filed. The probate petition will go into the name of the person bringing the proceeding which is usually the executor of the Will. In situations where the executor predeceased the individual who made the Will, or for any reason is unable to fulfill his or her duties as an executor, the Will will usually name an alternate or successor executor whose name must be contained in the petition for probate.

The Probate Petition

The probate petition will also have information as to the date the Will was executed, the names of individuals who acted as the attesting witnesses to the Will and it will establish an estimated value of the property of the individual who died. The value of each type of property the individual who died had also must be listed in the probate petition. Items such as bank accounts, life insurance policies, and annuities which have beneficiary designations contained in those documents are considered testamentary substitutes and do not need to be named in the probate petition. In addition, the names and addresses of all beneficiaries and blood heirs of the decedent must be named in the probate petition. The probate petition also must be signed by the executor or a successor executor and their signature must be notarized. It should be noted that the Surrogate’s Court in New York does not allow probate petitions to be submitted unless they are completed and all the information required is contained in the petition.

Waivers and Consent Forms

The attorney for the executor will usually submit waiver and consent forms to all of the next of kin of the decedent. This form establishes that these individuals who are next of kin, or heirs under intestacy, do not contest the terms and conditions of the Will. If waiver and consent forms are not signed by the family members, the court will then issue a Citation which has to be served on all non-consenting heirs of blood. This directs these individuals to appear in court on the return date of the probate petition in the event they seek to contest the Will.

In addition, a document referred to as a Kinship Affidavit needs to be submitted to the court to show who are the children and other blood heirs of the decedent.

Submission of Documents in the Surrogate’s Court

Although the Courts in New York have a uniform set of procedures, unfortunately, the clerks in each of the Metropolitan area Surrogate’s Courts have their own idiosyncracies with regard to what documents they seek to have submitted in probate and administration proceedings. They also have individual requirements that are not uniform from county to county as to court procedures. The best way to file an estate in the Surrogate’s Courts is to retain an experienced attorney who practices law in the areas of wills, trusts, estate and probate matters.New York Probate Attorney

What is Intestacy?

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

https://youtu.be/KkunAMO6eA0

Elliot S. Schlissel drafts wills and trusts and aids his clients in all aspects of estate planning.  Elliot handles estate litigation, including issues where a person has died without a will.  He and his associates have more than 100 years of combined experience representing clients.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email at schlissel.law@att.net.

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