Wife Held in Contempt for Failure to Turn Over Funds Pursuant to Court Order

wills and estates attorneysSurrogate Nelida Malave-Gonzalez sitting in Bronx County recently found a wife in contempt for failure to abide by court orders. A proceeding was brought to find the wife in contempt with regard to her failure to abide by a court Order of April 28, 2010. This court Order required her to turn over $102,395.36 to her husband’s estate. The wife failed to do so. The court found she had appeared in Court and was represented by an attorney. The parties had entered into a stipulation on May 23, 2013 which required the wife to turn over the $102,395.36 to the administrator of her late husband’s estate. These funds were received by the wife related to the settlement of a class action lawsuit against her husband’s employer.

Surrogate Gonzalez found the wife knowingly violated the 2010 court Order with regard to the turning over of the funds to the administrator. Judge Gonzalez in her decision stated the wife did not present any defense to her violating the court Order. She further held she willfully disregarded the court Order despite the fact she had been served with the Order. While finding the wife in contempt, Judge Gonzalez stated that she could purge the contempt and avoid imprisonment if she complied with the court Order.

assistance in estate mattersElliot S. Schlissel, Esq., represent clients throughout the metropolitan New York area regarding probating wills, estate litigation and drafting wills and trusts.

Mother Can’t Receive Inheritance From The Estates of Her Three Children Whom She Killed!

wills and estates lawyerJudge McCarty sitting in the Surrogate’s Court in Nassau County recently had a unique case before him. A mother had drowned her three children. However, she was found not guilty due to mental illness. Judge McCarty ruled even though the mother was mentally ill and she did not know that her conduct was immoral and wrong, she could still not financially benefit from her actions.

Leatrice Brewer brought a proceeding to inherit $350,000 from the estates of her three dead children. She had killed them in February 2008. She admitted she killed them because she thought she was saving them from a voodoo curse.

Son of Sam Law

The case dealt with whether Ms. Brewer could inherit from her dead children. This is covered by the Son of Sam Law. The Son of Sam Law prevents criminals from financially benefitting from the crimes they have committed. Justice McCarty stated in his decision “the fact that the State cannot criminally punish an insane defendant is irrelevant to a determination of whether it is equitable for the killer to inherit from the victim.”

At the time of her trial, Ms. Brewer was found not guilty by reason of mental disease or illness. She has been maintained in an upstate criminal psychiatric facility since the trial. Justice McCarty stated, although Ms. Brewer is not a criminal “this court will not relieve Ms. Brewer of her moral responsibility.” “To ignore Ms. Brewer’s own admissions concerning her children’s deaths by allowing her to share in a fund which would not otherwise have existed but for her conduct disturbs the conscience of the court.”

Wrongful Death Lawsuits

Wrongful death lawsuits had been brought by the children’s father against Nassau County. These lawsuits claim social workers had not properly monitored Ms. Brewer and her three children. The cases were settled for $350,000. Ms. Brewer’s attorneys brought an application to the court to prevent the father from receiving the $350,000 in settlement money.

Issues have arisen as to whether the father had legally abandoned the children and Justice McCarty indicated he would hold a separate hearing to determine if the father should be disqualified from receiving the $350,000 paid in settlement of the children’s deaths by Nassau County.

estate planning and administrationElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He probates wills and represents clients with regard to all matters before the Surrogate’s Courts in the State of New York.

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.

Reclusive Heiress’ Estate Settled

wills and trusts lawyersHuguette Clark died in 2011. At the time of her death, she had more than $300,000,000 in assets. There has recently been a tentative settlement agreement worked out between a variety of parties litigating over the late Huguette Clark’s $300,000,000 estate.

Her Life Story

Ms. Clark was born in 1906. She died at the age of 104. She had been residing in a mansion on Fifth Avenue. She had been married once for a short period of time and never had children. Huguette lived most of her life as a recluse. Many of her family members involved in the estate litigation had never even met her.

Ms. Clark had lived for the last twenty years of her life at Beth Israel Hospital in Manhattan. She had entered the hospital in 1991 with a severe case of skin cancer. The skin cancer caused a disfigurement of her face. After extensive plastic surgery to rehabilitate her face, she refused to go back to her spacious apartment on Fifth Avenue. She continued to live in her hospital room until the day she died. She kept the shades closed and the door to her hospital room closed. She spent her time playing with dolls and watching cartoons.

Ms. Clark’s fortune was inherited. Her father, William Andrews Clark, made his fortune by owning copper mines.

Wills That She Left

Huguette Clark executed two different wills in 2005 during a period of six weeks. The first will left all but $5,000,000 of her estate to a variety of family members. The second Will left her family nothing. It left all of her assets to a foundation for the arts and various individuals she knew. These individuals included her lawyer, who was the draftsman of her will, her accountant, her doctor and one of her nurses.

Settlement Worked Out on Her Estate

A lawsuit had been filed by Ms. Clark’s twenty grandnieces and grandnephews. It was their position Ms.Clark was incompetent, there was undue influence and fraud with regard to the execution of the second Will and therefore it should be declared invalid.

A tentative settlement has been worked out on the estate. The New York State Attorney General’s office helped mediate the settlement. Under this agreement, her family would receive $34,500,000, after taxes. The late Ms. Clark’s lawyer, Wallace Bock, her accountant, Irving Kamsler, would receive no inheritance. Ms. Clark’s nurse, Hadassah Peri, would also not inherit any funds from her estate and in addition would have to return the $5,000,000 she was given during Ms. Clark’s life. Although Mrs. Peri received nothing from her estate, she was allowed to keep the more than $30,000,000 she received in gifts during Ms. Clark’s lifetime. Ms. Clark’s lawyer and accountant would also be entitled to keep the gifts they had received during her lifetime. The Corcoran Gallery of Art, where her father’s art collection is maintained, received $10,000,000 under the settlement.estate planning and wills and trusts

Court Terminates Trust

trusts and estate attorneySurrogate Judge Rita Mella sitting in the Surrogates Court of New York County recently granted an application by co-trustees of a trust to terminate a trust. The trust was created pursuant to the decedent’s will. The purpose of the trust was to benefit a variety of individuals and charities. The trust called for the beneficiaries of the thrust to receive annual payments of income.

The will did not specifically deal with at what point the trust would terminate. The will merely stated the assets were to be held “in perpetuity” as long as there was income to make distributions on an annual basis.

The co-trustees of the trust brought an application to terminate the trust. They claimed that the expenses of maintaining the trust rendered its continuation impractical and economically unrealistic.

The court in it decision found the trust was no longer paying the income the decedent had requested in his will. The Court, in its decision stated “although the trust did not state when it would end, it also did not have a prohibition with regard to its early termination.” The termination of the trust was actually to the benefit to those individuals and charities receiving the income from the trust.

About The Author

help for aging babyboomersElliot S. Schlissel, Esq. is an attorney practicing law in the metropolitan New York area with more than 37 years of experience. Elliot and his associates represent individuals with regard to all types of wills, trusts and estate litigation.

Dying Without A Will

wills and trusts attorneysWhen an individual dies who has no will, the distribution of his or her estate is determined by the Intestacy Law of the state in which the person died in. In the State of New York, individual’s estates who die without a will are distributed as follows:

1. The first $50,000 goes to the spouse, if there is a spouse. The balance of the estate is divided 50% to the spouse (if there is a spouse) and 50% to the children.
2. In the event there is no spouse, the estate is equally divided among the children. If one of the children predeceases the individual who dies, that child’s children (the grandchildren) receive his or her share.
3. If the individual who dies has no spouse and no children, his or her assets go to his mother and father.
4. In the event the individual who dies has no spouse, no children, and the mother and father predeceased him or her, the assets are equally divided among his or her brothers and sisters.
5. In the event an individual dies who has no spouse, no children, the parents have predeceased and their brothers and sisters have predeceased, the nieces and nephews receive the estate.

Testamentary Substitutes

Even if an individual dies without a will, certain assists, called testamentary substitutes, go directly to the beneficiary named within the terms of the asset. Examples of testamentary substitutes are life insurance policies, bank accounts with named beneficiaries, annuities with named beneficiaries, individual retirement accounts and 401(k)’s that have named beneficiaries within the policies.

Appointing An Administrator

When an individual dies without a will, a family member or next of kin must petition the Surrogate’s Court in the county in which the individual resided to be named as Administrator of the Estate. Upon petitioning the court, the Administrator can be granted “Letters of Administration.” This gives the Administrator authority to act on behalf of the estate. The Administrator then marshals the decedent’s assets, pays all outstanding bills and thereafter distributes the balance of the estate to the appropriate heirs. The Administrator also must file State and Federal estate tax returns when necessary.

The Administrator is entitled to a fee pursuant to statute for his or her handling of the estate. This fee is over and above any funds the Administrator inherits in his or her capacity as an heir.estate planning for the elderly

Trust Documents Declared Void Due to Lack of Mental Capacity

In a case before Robert Gigante, sitting in Richmond County, New York, the Surrogate Judge had set aside a trust based on the lack of mental capacity of the individual who executed the trust. One of the decedent’s children contacted a lawyer and requested the trust document to be drafted. The lawyer drafted the documents pursuant to the request of the decedent’s child. However, the lawyer never met or spoke with the decedent. The lawyer relied on the child’s statements and a letter from a physician stating the decedent was “in an acceptable mental status.”

The court took the position there were questions as to whether the decedent could understand the terms and the conditions of the trust. A hearing was held. A doctor testified he didn’t believe the decedent could read and understand a sales contract. In its decision, the court stated no rebuttal testimony or evidence challenging the doctor’s conclusions was submitted to the court.

The court found the decedent lacked the requisite mental capacity necessary for the purpose of executing the trust. The court therefore set aside the trust.

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