What is Intestacy?

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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.

How To Avoid Probate in New York – Part II

trusts and estate attorneyTestamentary Substitutes

  • Payable on death accounts. A payable on death account is a bank account maintained in one individual’s control which has specific instructions about when that individual dies, it gets paid to a specific beneficiary. The beneficiary has no rights until the individual who opened the account dies.
  • Joint ownership of assets. Property in New York held jointly with rights of survivorship means there are usually two individuals who are the owners of this type of property. The property can be real estate or it can be a bank account. When one of these individuals dies, the surviving individual inherits all of the assets. Another type of joint ownership in New York is referred to as tenancy by the entirety. This refers to assets held in the name of a husband and wife. Under a tenancy by the entirety each of the parties are considered to own 100% of the asset. Therefore when one of the parties dies, the other party still owns 100% of the assets. In cases involving either joint ownership with rights of survivorship or tenancy by the entirety, probate of these assets is not necessary.

Conclusion

Probate delays and the expenses related to probating wills can be avoided. If you seek to avoid probate, you should retain an experienced estates or elder law attorney to develop a comprehensive estate plan for you and/or your spouse. This is not something you can successfully accomplish on your own.probate attorney in New York

How To Avoid Probate in New York – Part I

The probate process in New York can involve expenses, time delays and the opening up of family related issues to public scrutiny. There are a number of mechanisms which can be utilized to avoid probate. The following are examples of various types of legal measures which can be utilized to avoid probate:

  • Living trusts. In the State of New York, there are two different types of living trusts. One is a called a revocable living trust and the other is an irrevocable living trust. The difference between the two of them is the revocable living trust can be amended, modified or completely revoked by the individual who made the trust. The irrevocable trust can be amended and modified but it cannot be revoked. It is a permanent document. When these types of trusts are created, you turn your assets over to these trusts. This means you deed the house to the trust. Bank accounts, securities accounts and other investment vehicles can also be put in the trust’s name. At the time of the death of the creator of the trust, the trustee then takes action to carry out the terms of the trust which may involve the distribution of the trust assets to trust beneficiaries. This all takes place without the trust being subject to the probate process. Trusts are private documents. Wills are public documents which, after the individual dies, may be reviewed by anyone in the Surrogate’s Court. The distribution of assets in a trust is not supervised by the court. It is all handled privately. However, if there are challenges as to the manner in which the trust was handled, or the way the assets are distributed, legal action can be undertaken to deal with these issues.probate attorney

Naming An Executor In Your Will – Part I

estate planning lawyerThe executor of a will is the person who is in charge of handling your funeral arrangements, paying the bills which accrued prior to your death or related to your funeral, gathering your assets, filing tax returns when appropriate, and seeing to it your assets are distributed to the appropriate beneficiaries pursuant to the terms of your will. So who should you name as your executor? If you are married and your wife or husband is competent and dies after you, they would be the logical person to name. If you have children, you can name one or more of your children as alternate executors in the event your spouse should predecease you or perish with you in a common disaster. If you don’t have a spouse or children, you can name a brother, sister, friend, loved one, attorney, accountant, priest, rabbi, minister or any other person you believe to be of high moral caliber and would carry out the duties as your executor. Banks and trust companies can also, under certain circumstances, be named as either the executor of your will or the trustee of a trust.

Attorney For The Executor

The most important thing the executor does in most estate circumstances is hire an experienced, available attorney to act as the attorney for the executor. The attorney for the executor, guides the executor through each and every aspect of his or her duties and sees to it that all aspects of handling the estate are properly undertaken and accomplished.

If You Don’t Have A Will Or You Don’t Appoint An Executor

If you do not name an executor in your will, one will be appointed by the Surrogate’s Court. If you don’t have a will, individuals in your stream of inheritance under New York State law can apply to the court to be named as the administrator of your estate. One point regarding an executor is, you should name someone who is willing to serve. In the event your executor declines to serve or is unable to act in that capacity, it is important your will names an alternate executor.wills and trusts attorney

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.

Incompetence

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 transaction.estate 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 schlissel.law@att.net.

Revoking or Challenging a Will

Elder Law AttorneysA will is referred to as the last will and testament. Every will you write is your last will and testament. If you write a will when your children are infants, that will may not deal with the circumstances of your children 25 or 30 years later. You cannot assume the needs of your children or other loved ones are the same early in their lives as they will be later in their lives. Your assets also may change or vary significantly during the course of your life. You may get married, get divorced, have children, have children who die before you, have grandchildren and be responsible for taking care of parents or other loved ones. All of these issues should be addressed in a will.

If your will is not up to date, you should write a new will. There is a device called a codicil which is an amendment to the will. However, modern drafting of wills strongly suggests against writing codicils. Instead, a new will should be written and the old will should be revoked.

Revoking a Will

How do you revoke a will? A will can be revoked by writing a new will which supercedes the old will. A will can also be revoked by tearing it up and throwing it in the garbage. You can also write revoked across the front of a will, sign your name and date it.

Challenges to a Will

A will can be challenged for a variety of reasons. A will can be challenged based on the fact it was not executed with proper testamentary formalities. There are very specific and detailed requirements necessary to write a will in the State of New York. Certain things must be said, certain things must be done, and the will execution ceremony has very specific requirements. You should never try to write your own will. Always consult with an experienced estates attorney if you seek to draft a will.

Testamentary Capacity

Another reason for challenging a will is the individual did not have the mental capacity to write a will. This challenge basically states that said individual didn’t know what he or she was doing when the will was executed.

Undue Influence

A will can be challenged on the basis someone had taken over the individual who wrote the will’s ability to make independent decisions on their own. This is referred to as undue influence. Undue influence becomes a more significant issue when an individual grows old and is infirm and becomes dependent on another individual who ingratiates themself by pressing them to write a will leaving them all of their assets or a disproportionate amount of the assets.

Fraud or Duress

If an individual is tricked or coerced into writing a will, the will can also be challenged.

Avoiding Will Challenges

Under New York law, a spouse is entitled to a minimum of one-third of your estate or $50,000, whichever is larger. If you write a will leaving your spouse less than one-third, he or she can challenge the will. To avoid will challenges should you want to leave a spouse less than what he or she is entitled to under New York State law, a prenuptial agreement or a waiver of spousal inheritance rights document must be prepared and executed.

If you seek to disinherit a child from receiving assets in your estate, the best way to do this is not to leave the child absolutely nothing. The better technique is to leave the child a minimal amount of the assets in your estate and have a clause in the will indicating if that child challenges the will, they lose the specific amount you left them in the will.

Conclusion

If you have issues or problems, or seek to draft a will, contact an estate planning attorney who can help you meet your goals.estate litigation attorney on Long Island

Objections to the Probate of a Will

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

https://youtu.be/023eX_nXdfI

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He has been representing clients for more than 35 years concerning wills, trusts, estates and elder law planning matters.  He can be reached at 516-561-6645, 718-350-2802, or by email to schlissel.law@att.net.

Document Executed in Hospital Not a Valid Will

estate planning attorneysIn a matter which recently appeared before Surrogate John Czygier Jr. sitting in Suffolk County, the validity of a will was being questioned.

A man was in the hospital. He wrote a one page document in his own hand and signed it before going into surgery. The document named his long time companion as executrix and gave her the large majority of his assets.

Sons Object to This Document Being Accepted as a Will

The man died. His companion sought to probate this document as a valid will. The sons objected to it being accepted as a valid will. The document had been witnessed by two individuals who work for the hospital. Both of these individuals stated the decedent executed the document in front of them and was of sound mind.

Judge John Czygier Jr. stated in his decision when a will is executed under the supervision of a lawyer there is a presumption of it being valid. In this case it was not executed under the supervision of a lawyer and there is no presumption of its validity. Judge Czygier stated in his decision the witnesses did not know the document being executed was a will. No evidence was presented the decedent knew he was executing a will. The decedent referred to the document only as his “wishes.” In addition, Surrogate Czygier stated the testimony did not meet the minimum statute requirements of “publication” of the proposed will. In addition, the document did not have the statutorily required attestation clause. The judge therefore took the position the minimum statutory requirements for the execution of a will were not met and this instrument could not be probated.

estate probate attorney on Long IslandElliot S. Schlissel is an attorney with more than 35 years of experience representing clients regarding wills, trusts and estate issues.

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 beneficiaries.new york estate planning and probate attorney

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