Accounting Proceedings

Accounting-Proceedings

The individual in charge of gathering the assets in an estate, trust or a will is called a fiduciary. Fiduciaries have administrative duties to see to it estates, wills and trusts are handled appropriately. They have a special responsibility for dealing honestly and responsibly with the estate assets. They often are responsible for collecting, managing and distributing the assets of an estate. The fiduciary can be the executor of an estate, the administrator of an estate or a trustee. Sometimes fiduciaries do not carry out their duties appropriately. If a fiduciary does not carry out the terms of the will, or a trust or the intestate distribution (dying without a will) appropriately they may be in violation of their fiduciaries duties.

Examples of a Fiduciary Breaching His or Her Duties:

  • Failure to follow the terms of a will, trust or deviating from intestate distribution responsibilities
  • Taking action regarding the property of an estate without obtaining the appropriate approval of the beneficiaries
  • Mishandling of assets of the estate
  • Failure to move forward with the administration of the estate or trust in a prompt manner
  • Failure to keep the beneficiaries up to date with regard to the handling of the estate or trust

Court Intervention Regarding Fiduciaries

If a fiduciary is not carrying out his or her duties in an appropriate fashion, any beneficiary can take legal action to deal with these issues. One of the types of legal action a beneficiary can bring is called an accounting proceeding. The beneficiary can ask the Surrogate’s Court to intervene and take action against the fiduciary if they have failed to fulfill their obligations. The fiduciary can be surcharged and/or removed from his or her position as a fiduciary. If an accounting proceeding is brought, the fiduciary should in a reasonable period of time provide a copy of the accounting to the beneficiaries. In some situations if a fiduciary engages in inappropriate activities concerning estate assets he or she can be charged for these losses. In these situations a fiduciary has to reimburse the estate for the loss of the estate assets.

Amicable Resolution of Estate Matters

The best way to deal with estate problems is to try to reach amicable resolutions of issues outside of the courthouse. Litigation is expensive and time consuming. However, if the situation rises where an estate or trust matter cannot be resolved amicably, aggressive legal action can be taken to deal with these issues.

Elliot-Schlissel

Elliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. The law firm has more than 35 years of experience dealing with all types of issues involving wills, trusts and estate matters. They can be reached for a free consultation either 516-561-6645, 718-350-2802 or 631-319-8262. He can be e-mailed at Elliot@sdnylaw.com.

Benefits of a Trust

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He and his associates have more than 100 years of combined experience representing clients in all aspects of estate planning.  He can be reached for consultation by calling 516-561-6645 or 718-350-2802, or by sending an email to schlissel.law@att.net.

Philip Seymour Hoffman Disinherits His Children

estate planning attorneyIn February 2014, Philip Seymour Hoffman died. He had written a will in 2004. His will left all of his worldly assets to his “friend and companion” Mimi O’Donnell. Mimi was the mother to his three children. Mr. Hoffman’s lawyer and his accountant had made recommendations to create trusts for his children. Mr. Hoffman rejected their suggestions. He told them he did not want his children to become “trust fund kids.” To avoid spoiling his children, he intentionally left all of his assets to his girlfriend, Mimi. Prior to his death Mr. Hoffman met with his attorney to discuss his estate plan. During that interview, he again articulated his objections to setting up trusts funds for his children.

Hoffman Never Married

Hoffman never married Mimi. He had a long standing relationship with her and he trusted her. In a report submitted to the court by an attorney appointed to represent Mr. Hoffman’s children’s interests, the attorney stated Mr. Hoffman “simply did not believe in marriage but that did not affect his affinity or relationship for Ms. O’Donnell.” Hoffman’s lawyer stated Hoffman told him he wanted his son to be raised in the city with art and culture. On page 13 of Mr. Hoffman’s will it stated “it is my strong desire, and not my direction to my guardian, that my son Cooper Hoffman be raised and reside in or near the borough of Manhattan in the State of New York, or Chicago, Illinois, or San Francisco, California.”

Hoffman stated in his will “the purpose of this request is so that my son will be exposed to culture, arts, and architecture that such cities offer.”

Academy Award Winner

Philip Seymour Hoffman had obtained an academy award for his role in portraying Truman Capote in the movie Capote. He had also received three other academy award nominations. He was well respected as an actor’s actor by his peers. At the time of his death he was found on the floor of his apartment with a needle containing heroin in his arm. Investigation of his death uncovered fifty additional envelopes containing heroin in his apartment.

His death was a tragedy for all of the actors, directors, and other individuals in the movie industry who worked for him, with him and for his family.estate planning and trust attorney on Long Island

Will Leaving $100,000 to a Cat is Upheld

Charlotte Stafford had three nephews and a cat. She left her cat, Kissiemeouw, $100,000 and she disinherited her three nephews.

Nephews Challenge The Will

The nephews challenged the will. They claim their aunt did not have the mental competency to make a will. The attorney who drew up the will testified Charlotte Stafford was “very aware and alert at the time the will was drafted.” He testified she had the appropriate testamentary capacity and knew exactly what she was doing when she left $100,000 in a trust to her cat.

No Undue Influence From The Cat!

Justice John Egan wrote the decision on behalf of the Appellate Division for the Third Department (an appeals court) that by all accounts, decedent was a very intelligent, private and strong willed woman who ran her life the way she wanted to run it. He went on to state her attorney “did not observe any evidence of undue influence with respect to the execution of various instruments or the dispositions contained therein.” He made these statements with regard to the will and trust set up for Ms. Stafford’s cat.

Charlotte Stafford, in addition to disinheriting her three nephews, left $300,000 to be used to maintain her home. The home was to be held in a trust for the benefit of the Town of Oxford. It was to be used for historical research and preservation purposes pursuant to the terms of her will. The trust she set up for her cat, Kissiemeouw Stafford, contained provisions for the maintenance of the Stafford home which was to terminate upon the cat’s death or the passage of 21 years from Charlotte Stafford’s death. Her friend and housemate, Vicky House, was designated as the cat’s caretaker. Pursuant to the terms of the will, she was allowed to live in the Stafford house rent free as long as she acted as the caretaker of the cat.

Conclusion

Cat wins, nephews lose!

Elliot S. Schlissel, is a member of the National Academy of  Elder Law Attorneys.  He drafts wills and trusts and represents clients regarding estate litigation.

Reforming a Trust

new york wills and trusts lawyerSurrogate Rita Mella, sitting in the Surrogate’s Court in New York County, recently had a case involving the issue of reforming and/or changing a trust. In this case, the two co-trustees brought a proceeding to make major modifications to the terms of the trust. These trustees requested they be given a limited power to invade trust principal. The trust itself did not give them this power. They also sought to change the age current beneficiaries of the trust were to receive distributions of their shares of the trust. This action would speed up the termination of the trust.

Surrogate Mella took into consideration the trust was established for the benefit of a group of members of the decedents family. The trust was specifically designed to provide financial benefit to grandnephews and grandnieces. Each of them would receive a share of the trust after reaching the age of 25.

The co-trustee referred to a case called The Matter of Kern for support of their position that if the parties to the trust were in agreement, there was a basis for the court reforming the terms of a testamentary trust. Unfortunately for the trustees, Surrogate Mella disagreed with their position. She found that the case Matter of Kern did not stand for the proposition alleged by the co-trustees.

Surrogate Declines to Modify Trust

Surrogate Mella in her decision declined to modify the trust. Her holding was the intentions of the testator in drafting the trust were clearly expressed in his will. The fact the co-trustees and the beneficiaries sought to modify the terms of the trust did not establish a basis in law or judicial precedent for the court to disregard the clear and concise terms of the will that created the trust. The co-trustees’ application to reform the will was denied.

help in planning trustsElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. Elliot and his staff of attorneys draft wills and trusts and probate wills throughout the metropolitan New York area.

Home loans – Who pays them in the event of your death?

home loan attorneysThere are a lot of questions that are very practical for real life and do cross our minds but we don’t know where to seek the answers for them. One such question is if you have a home loan on your name, what happens in case of your death. Simply putting, the loan will get transferred to the co-applicant or the legal heirs that you have. Thus it should be your prerogative to save your family from repayment problems by getting insurance on the loan. Here are some situations that you can encounter that are explained here in United Finance.

Loans of single people:

In case you are single, the debts that you have will not pass to your family members the way it is with your assets. However, before the assets that you have left passes onto the beneficiaries that you have designated the home loan that you have has to be settled by your estate. This means that whoever has the authority to administer your estate will see that the home loan you have is paid off using your savings and the proceeds of your life insurance. In case the mortgage is cleared, the house passes on to your beneficiaries. An alternative also exists. The administrator can sell off the house and clear your mortgage and the remaining proceedings would go to your beneficiaries.

Loans of married people with joint ownership:

In the situation that you are married and you own the house jointly with your spouse the mortgage and the house will solely pass onto your spouse. This functions just like your bank account, in the event of death of one owner, the other becomes the singular owner. It is same when it comes to co-signers. There are a number of young families who have a limited credit history and they generally have their parents co-sign on their mortgage for them to get a better rate. In this case if both you and your spouse pass away the mortgage falls as a burden on your parents.

Loans of married people with single ownership:

A third situation is if you are married but are the sole owner of your home. You may have purchased the house before your marriage and hadn’t updated the deed. In such a case the fate of the house depends upon what the estate plan says. If there is no estate plan then your house passes on to your spouse but only when the home loan has been paid off completely. It is always better to jointly title the house as it simplifies a lot of legal proceedings. The only time this is not a good idea is when the house is considerably under water and you don’t want your spouse to face that burden. This is a complex legal issue and you should consult a mortgage attorney before taking any final decision.

Marie is an accomplished financial consultant writing about socio-economic problems as well as legal and financial articles in many websites. Her knowledge about reputable money loans online is undoubtedly one of the best.

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