Administrator of Estate Removed

In a case before Surrogate Melinda Malaze-Gonzalez, who sits in Bronx County New York, a son who was co-administrator of an estate asked the court to remove letters of administration issued to his sister, the decedent’s daughter. It should be noted the co-administrators were the brother and sister and the sole beneficiaries of the estate.

The Estate Had Real Estate Assets.

The primary assets of the estate were real estate holdings. The brother and sister had entered into a stipulation. The stipulation called for each on them to be co-administrators of the estate of their parent. The court granted letters of administration to both the brother and the sister. There were restrictions in the letters of administration concerning the real estate owned by the decedent.

Brother Seeks To Remove His Sister

The brother brought a legal action seeking to remove his sister as the co-administrator of the estate. The sister failed to retain an attorney to oppose her brother’s proceeding to have her removed. Justice Malaze-Gonzalez found the son’s allegations were not in controversy. She also found the sister’s refusal to take necessary steps to collect and distribute the estate’s assets was in violation of her fiduciary obligations. In addition, Judge Malaze-Gonzalez found a failure to state any reason why the assets of the estate should be retained constituted the basis of granting the son’s application to have her removed as the co-administrator due to her failure to understand what her fiduciary duties were.

schlissel-headshotElliot S. Schlissel, Esq. is an estate’s lawyer. He represents individuals probating wills, challenging wills, filing intestacy proceedings and all other estate related matters throughout the Metropolitan New York area. He has been helping his clients for more than 3 decades in these endeavors. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

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.

Photocopy of Will Admitted to Probate: Original Will Lost in Storm, Not Destroyed or Revoked by Testate

Trusts-ExplainedIn a case before Surrogate’s Court Judge Peter Kelly in Queens County, the children of decedent sought to probate a photocopy of a will. A hearing was held before Surrogate Peter Kelly as to whether a photocopy of a lost will could be submitted to probate. The general rule with regard to lost wills is there is a presumption the person who made out the will destroyed the will and therefore a photocopy of the will is usually not allowed to be probated.

Original Will Destroyed

There was testimony of witnesses the original will was lost on the first floor of the decedent’s home which was destroyed during Superstorm Sandy. Justice Peter Kelly found the children of the decedent clearly and convincably proved the original will was not revoked by their father or at their father’s directions but was destroyed by the force of nature. Justice Kelly therefore ruled that the copy of the will offered was a true and complete copy of the decedent’s original will and could be admitted to be probated.

Conclusion

If a will is lost or destroyed through no fault of the maker of the will, it is possible to probate a copy of the will.

schlissel-headshotElliot S. Schlissel represents clients in the drafting of wills, trusts and estates as well as the probating of wills. He can be reached for a free consultation at 800-344-6431 or emailed at Elliot@sdnylaw.com.

Protecting Beneficiary Rights

Protecting Beneficiary

A family member of yours has died. You are now wondering whether you are going to inherit from this individual. What do you do to protect your rights? The laws in the State of New York protect the rights of beneficiaries. If the beneficiary’s rights are violated he or she can take the appropriate legal action to see to it they receive the inheritance they are entitled to. The estate administration process can be a complicated long, drawn out court proceeding.

Problems Among Family Members

Estate matters can result in difficult personal issues among family members. If you are denied assets which were promised to you by a loved one before he or she died, legal action may be necessary to protect your interests. It is extremely important if you have not received the inheritance that was anticipated that you contact an estates attorney as soon as possible. There are a variety of time limitations built into the laws in the State of New York to take the appropriate legal action to protect beneficiary rights. If those time limitations have expired you may not be able to pursue the inheritance that pyou are entitled to.

The Probate Process

Attorney Elliot Schlissel

The purpose of the probate process is for the court to test the legitimacy of a will. The probate process involves the determination regarding who are the appropriate beneficiaries to inherit the estate. An individual who received notice of the probate proceeding who believes his or her rights have been violated must take legal action during the course of the probate process if they wish to have a judge deal with their contentions. There are many issues which can be brought to the court’s attention during the probate process including issues involving whether the executor is an honest appropriate person to be appointed to handle the administration of the estate.

Contact Us

Should you have questions on an estate matter feel free to contact our law office for a free consultation. We can be reached at our Nassau, Queens and Suffolk offices at 516-561-6645, 718-350-2802 or 631-319-8262. We can also be e-mailed at Elliot@sdnylaw.com.

What is Probate?

What is Probate?

Probating a will means bringing an action in the Surrogate’s Court in the county where the individual died to establish the validity of a decedent’s will. The probate process involves the distribution of the estate assets pursuant to the terms of the Last Will and Testament of the decedent. The probate process in New York is not a simple process. The process is designed to see to it that the wishes of the decedent are carried out. Should there be disagreements among the beneficiaries or heirs of the decedent, the probate process becomes even more difficult.

The Probate Process

The probate process involves preparation of petitions to the court. The original will need to be filed with the court as part of the probate petition. The proposed executor who is probating the will obtains from the court a return date for the probate petition. The next of kin and/or the beneficiaries to the will need to be served with the probate petition prior to the return date of the petition in court. On the return date of the petition in court individuals who seek to challenge the will can advise the judge of their position. If the will isn’t challenged, an order is submitted to the court appointing the executor

Executor’s Duties.

Once the executor is appointed he or she first gathers the assets and then liquidates them. Thereafter the executor ascertains who the creditors of the estate are and pays the creditors. Seven (7) months after probate of the will, the executor can start making distributions of assets stated in the will to the named beneficiaries. At the time beneficiaries are to receive their distributions they are usually requested to sign a receipt and release which indicates the executor has properly handled the estate proceeding and has made the appropriate distributions to the beneficiaries.

Conclusion

Attorney Elliot Schlissel

The probate process which is designed to see to it that beneficiaries in estates are treated fairly is not a simple process in the State of New York. Whether you are an executor, beneficiary or someone seeking to challenge the will it is strongly recommended you hire an estates attorney to protect your rights.

Elliot S. Schlissel has been representing executors, administrators, beneficiaries and potential beneficiaries in estate cases throughout the Metropolitan New York area for more than 3 decades. He can be reached at 800-344-6431 or Elliot@sdnylaw.com

Probate: How Does It Work?

estate planning lawyerProbate refers to a court supervised system that is set up to insure that wills presented are authentic, not obtained under fraud or duress, and properly prepared and executed. The property inherited through a will is subject to the probate process.

There are other types of property that pass outside of a will. These assets are referred to as testamentary substitutes. Examples of these assets are joint bank accounts, annuities, life insurance, pensions and 401(k)s (provided they have beneficiary designations).

Probating a Will

Probating a will deals with the process by which a will is shown to the court and reviewed by the court for being properly executed and being considered valid to control the distribution of the assets contained in the will.

Avoiding Probate

Probate can be avoided. The primary methods of avoiding the probate process is by making gifts during your lifetime, putting your assets in trusts that avoid the probate process, or having assets subject to the right of survivorship.

Contesting Probate

During the course of the probate process, individuals who are blood relatives are notified that a will is being probated. In cases where blood relatives feel that they have been disinherited without just cause or reason, they can retain counsel to challenge the probate process and investigate the circumstances and events surrounding the preparation and execution of the will.

The Executor

A will names a person to handle the final funeral arrangements, and distribute the assets pursuant to the terms of the will. This individual is referred to as an executor.

Distribution of Assets

After a will is probated, the executor’s responsibility is to find all the assets, obtain them, put them into an estate account and thereafter distribute them. However, assets cannot be distributed for the first seven months after the will is probated. The purpose of this is to give creditors sufficient time to file their claims against the estate.

Questions About Probate?

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