Litigating Issues Involving Wills And Other Assets Taking Advantage Of The Elderly and Infirm – Part II

probate litigation on Long IslandUndue Influence

Undue influence occurs in situations involving emotional or physical coercion. Threats, flattery and excessive action to persuade an individual to the point where that person no longer has a freedom or will on their own to make decisions as to who should receive their assets, are all examples of undue influence. When the beneficiary, either through a will or of a joint account, is an individual who had power of attorney, was the actual attorney for the individual, or was in a position of trust or confidence such as a caregiver, a presumption of undue influence can arise with regard to transactions which enrich these individuals.


The basic test for incompetence was whether at the time the individual wrote the will or changed the bank account, he or she understood the nature of the document or transaction which was involved and who the actual beneficiary would be. As individuals grow older, situations involving dementia and Alzheimer’s disease are more common. Sometimes an individual’s memory fails due to age, Alzheimer’s disease or dementia. These individuals can have days where they know what they are doing and days when they don’t. In these cases, it is necessary to obtain the medical records of the individuals who have made the will or transferred the joint bank accounts and sometimes hire expert witnesses to testify in court proceedings with regard to the level of competence the individual had at the time the will provisions were made or the bank accounts were transferred. In addition to medical witnesses, friends, family members and others who interacted with the senior can testify as to their experiences concerning the mental competence of this individual. The law in New York presumes everyone is competent to make a will, a trust, or to put another individual on their bank accounts or other investment accounts. The individuals challenging the transaction have the burden of proof to convince the court to set the transaction aside due to the incompetence of the individual undertaking the litigation attorney

Man Seeks to Recover Property From Decedent’s Home

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his associates have been representing clients for more than 35 years in all aspects of estate litigation, estate planning, drafting wills and trusts, and guardianship proceedings.  He can be reached for consultation at 516-561-6645, 718-350-2802 or by email to

A Mother Sought to Inherit From Her Deceased Children

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. Elliot and his associate attorneys maintain a sophisticated practice handling numerous estate proceedings each year. He can be reached for a consultation at 1-800-344-6431, 516-561-6645 or 718-350-2802, or by email to

IRA Distributions and IRS Penalties

Long Island attorney for estate and financial planningIf you have an Individual Retirement Account (IRA), once you reach the age of 70 ½ years, you must start making distributions out of the account each and every year. Should you fail to make these annual distributions, significant fines are triggered. These fines can equal up to 50% of the money which was supposed to be distributed in that year from the account. Individuals who have IRAs usually wait until the end of the year to make their minimum distributions. They take this action to maximize the interest rate returned on their funds. It is estimated that three-quarters of a million Americans hold IRAs which require distributions each year. It is estimated one-quarter of a million of these IRA holders miss the deadline for taking minimum distributions. The distributions amount to approximately $350 million dollars which triggers potential fines and penalties of up to $175 million dollars.

Bank Notification of IRA Distributions

The IRS has recently been cracking down on IRA holders who fail to make their minimum distributions. It is up to the financial institution that holds the IRA investments to notify you each and every year of the amount of required distributions to be made by the end of that year. The first year the minimum distributions are required to be made, you have until April 1st to make those distributions. Thereafter, in subsequent years, you have until December 31st to make distributions.

Death of the IRA Holder

In the event the individual who owned the IRA dies, the beneficiary of the IRA must make the deceased IRA holder’s distributions in the year of that individual’s death. Beneficiaries who are not the spouse of the IRA holder must continue making distributions in the year after the death of the IRA owner. Unfortunately, financial institutions do not provide these individuals with notice of the minimum distributions.

IRA distributions can be confusing. Seniors should make every effort to meet with their accountant or their attorney to determine what amount they need to distribute each and every year.

estate planning attorney on Long IslandElliot S. Schlissel is an elder law attorney. He drafts wills and trusts. He probates wills and represents beneficiaries of estates.

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.

Wife Waives Her Rights to Inherit From Her Husband in a Prenuptial Agreement

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Elliot S. Schlissel is an elder law attorney.  He can be reached at 516-561-6645, 718-350-2802, or by email to

Woman Dies As A Recluse With No Children

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Elliot S. Schlissel is a member of National Academy of Elder Law Attorneys.  He can be reached at 516-561-6645, 718-350-2802 or by email to

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

Contesting a Will

Wills in the State of New York can be contested. The probating of the will by the executor of the will gives the potential contestants of the will the ability to appear in court and advise the court they are contesting the will. There are a number of grounds which can serve as the basis for contesting a will. Here are some of the grounds which can be asserted in a petition to the Surrogate’s Court to set a will aside:

  1. The will was not properly executed. For a will to be properly executed in the State of New York, it must be signed by the testator at the end and witnessed by two witnesses. At the time of the execution of the will, all three of the parties must be in the room at the same time. If the strict formalities under New York State Law concerning the execution of a will are not complied with, the will can be set aside.
  2. The will is a forgery. A forged will is a will executed by someone other than the testator who seeks to create the will. With wills prepared by law offices it is extremely difficult to allege a forgery defense in the courts in New York. However, wills which are prepared by the testators themselves, or by individuals or by other parties who are not lawyers, have a greater potential at being challenged as forgeries.
  3. Lack of testamentary capacity. The person who is having the will prepared must be competent on the date the will was executed. Challenges for lack of capacity can be based on the person writing the will having Alzheimer’s disease, dementia, mental illness or that they were taking prescription or non-prescription drugs which would have prevented them from having a clear mind and being capable of making decisions related to the distribution of their assets and/or to their loved ones in a will.
  4. Undue influence, fraud or duress. In each of these situations the person writing the will may have been deprived of the independent ability to make their own decisions with regard to the terms and conditions in the will.

Purpose of Probate

The purpose of the probate process is to determine the validity of the will. When the will is determined to be valid, properly executed, and/or there are no challenges to the will, the court will accept the will into probate, appoint the executor and let the executor move forward with the payment of debts, obtaining the estate’s assets, and distributing the assets to york estate planning and probate attorney

Copy of Will Denied Probate

In a decision by New York County Surrogate Court Judge Rita Melia, Judge Melia found a copy of a will could not be submitted to probate. There is a presumption when the original will cannot be found that it was revoked by the person who made the will destroying it.

An uncontested action was submitted to Surrogate Melia. It was claimed the original will was lost. A copy of the will had been maintained by the attorney draftsmen, and said copy was submitted to be probated.

Presumption of Will’s Destruction

Justice Melia found in her decision where the decedent was the last person to have custody and control of the original will, and it could not be found at the time of that individual’s death, there is a presumption under New York Law the individual destroyed the will which constituted a revocation of the will. Justice Melia stated the law in New York is that this presumption was rebuttable only by clear and convincing evidence.

Attorney Draftsman Seeks to Have Will Probated

In this case, the attorney draftsman submitted an affidavit to the court. The affidavit indicated he was a close friend of the decedent. He was also a business associate for more than 20 years of the decedent. He and the decedent maintained constant contact during the past 20 years. The attorney stated in his affidavit in the event the decedent had decided to revoke the will he would have been contacted and a new will would have been drafted. He reached the conclusion since the decedent didn’t contact him, the will was lost and not destroyed and a copy of the will should be submitted to probate.

Surrogate Melia Denies Probate To the Copy of the Will

Justice Melia found the affidavit of the attorney draftsman was not sufficient to provide the court with clear and convincing evidence to overcome the presumption the original will had been revoked by destruction by the decedent. Justice Melia therefore denied probate of the copy of the will.