Lost Will is Presumed Destroyed

September 26, 2019 By

Lost Will is Presumed DestroyedIn a recent case the administrator of an estate tried to probate a copy of a decedent’s will. The son challenged the probating of a copy of the will. The court rendered a ruling there is a presumption that a will in the possession of a decedent which cannot be found after his or her death was destroyed by the decedent.

New York Regarding Missing Wills

The law in New York is clear that there is a strong presumption a will that was in a decedent’s possession cannot be located after his or her death was destroyed by the maker of the will. Destruction of the will revokes the will. In cases where the decedent is in possession of his or her own will and the will isn’t found after they die, a copy of the will cannot be probated. If the individual dies he or she does not have to advise anyone that they destroyed the will. The very fact that the will is not found to be in the possession of the decedent after his or her death is sufficient to establish that the will was revoked.

schlissel-headshotElliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. The law firm represents clients in all aspects of wills, trust and estates in estate cases. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Wills Tagged With:

Legal Action to Disqualify Mother from Inheriting from her Dead Son

July 11, 2019 By

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.

Filed Under: Probate, Wills Tagged With: ,

Accounting Proceedings

October 22, 2018 By

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.

Filed Under: Trusts, Wills Tagged With: ,

Do Your Debts Die With You?

February 24, 2017 By

Debts-Die

To start with your debts don’t die with you. They survive your death. If you have a Will the obligation to deal with your debts falls upon your executor after the Will is probated. If you have no Will an administration proceeding can be brought by the next of kin to appoint someone to handle your affairs.

Most Americans Die with Debts

If after you die your debts aren’t paid it will have a negative impact on your credit rating. But of course you won’t care about that because you will be dead! If you have assets your creditors can file a claim in your estate proceedings against the assets. In estate proceedings debts are paid before there is distribution of the assets to beneficiaries in a Will or next of kin in an administration proceeding.

Credit Card Debts

There is a statute called the Credit Card Act of 2009. This requires credit card companies to notify the estate quickly with regard to any debts of the deceased. The statute also prevents credit card companies from assessing additional fees of penalties while the estate proceedings are pending. There are situations where there are not enough liquid assets to pay the credit cards. In these cases the credit card companies may contact family members and request they pay the balance of the credit card debt. Be advised unless a family member has co-signed for the credit card, there is no obligation to pay these debts and family members will not be held liable by the credit card companies for these debts.

Unpaid Loans

If you have student loans which are pursuant to a federally backed student loan program these loans will be discharged upon your death. Private loans do not become discharged in the event of your death. Banks and other financial institutions will request payment from your estate. If there are no liquid assets to pay these debts from your estate and there is a co-signer on the loan they will go after the co-signer to pay the debt.

Mortgages and Car Loans

Mortgages and car loans are considered secured debts. The mortgage is secured by the home and the car loan is secured by the vehicle. In the event these types of loans are not paid the creditor can take legal action to repossess the car and foreclose on the house.

Doctors and Hospital Debts

Money owed to hospitals and/or medical providers are not discharged at the time of your death. These unpaid bills may become a lien against your estate. If there is a co-signer for these debts, the co-signer will be obligated to pay these debts upon your death.

Family Members Pressured to Pay Debts

Attorney Elliot Schlissel

Sometimes collection agencies and their telephone collectors seek to put pressure on family members to pay deceased relatives debts. Be advised, unless you co-sign for a loan you are not responsible to pay the debt of a deceased family member.,

Filed Under: Wills Tagged With:

After a Loved One Passes

January 20, 2016 By

Losing a loved one can be an extremely difficult experience. In some situations after your loved one passes, their next of kin is called upon to supervise the estate of the deceased. After the funeral takes place, the individual charged with handling the estate of the deceased has to first find the assets and gather them together within the confines of the estate. Thereafter he or she must pay creditors and authenticate who the beneficiaries to the estate are. If the decedent wrote a will, the process begins by probating the will.

The Probate Process

The first step in the probate process is to locate the original Will and file the Will with the Surrogate’s Court located in the county where the decedent resided before his or her death. In addition to filing the Will, a probate petition must accompany the Will. If the court accepts the probate petition, the case will be placed on the court’s calendar. The beneficiaries and next of kin will need to receive notice of this upcoming court date. On the return date of the probate petition, if there are no challenges to the will, the court will render a decision authorizing the executor named in the Will to be appointed to fulfill the terms and functions of the Will. The executor will determine the assets of the estate and gather them together. These assets may involve selling real estate, liquidating bank accounts, stocks, bonds and mutual funds, and various other types of assets. If there are expenses related to the decedent’s final illness, these expenses must be paid. Tax returns for the year in which the decedent died must be filed and if taxes are due, they must be paid. If the estate is a large estate, there may be estate taxes due and owing. At the end of the probate process the executor must prepare an accounting of the assets received, the payments which have been made to creditors, and lay out the scheme for the payment of the balance of the funds of the estate to the beneficiaries named in the Will.

No Will Causes Administration Proceedings

Administration proceedings are similar to probate proceedings, however they are a bit more complicated. Since no one has been named by the decedent to handle his or her estate, the next of kin and/or other family members may approach the court and seek to be named the administrator of the estate. This sometimes causes disputes among those individuals who seek to control and administrate the decedent’s estate.

In both probate and administration proceedings, family members who don’t feel they received their fair share of the estate sometimes come forward and challenge the estate proceeding.

Dealing with Estate Issues

I would not recommend an executor or administrator try to handle either the probate of a Will or the administration of an estate without the guidance and legal representation by an experienced estates attorney. If the administrator or executor makes a mistake, he or she can be personally liable for financial damages. The cost of hiring an attorney to represent the estate are paid by the assets in the estate, not by the funds belonging to the administrator or executor.new york estates attorney

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Misconceptions Regarding Wills

November 6, 2015 By

To watch today’s video blog, please click on the link below:

https://youtu.be/XRVj__nSeAY

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his attorneys have more than 100 years of combined legal experience handling all aspects of estate planning and estate litigation.  Please call to schedule a consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

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Requirements When Preparing a Will

October 24, 2015 By

To watch today’s video blog, please click on the link below:

https://youtu.be/pUnOQlVlAkg

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He and his associates are available for consultation at 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.

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Handling An Estate in a Nutshell

October 1, 2015 By

estate administration attorneyAll human beings that live will eventually die.  When a loved one passes, dealing with his or her estate is not a task most people look forward to.  However, most people will, during the course of their lifetime, be involved with estate issues concerning a loved one.

When the grief passes, the issues involved are who are the heirs of the estate, what are the assets, how are they distributed, and what creditors need to be paid, become issues in the decedent’s estate.  If the individual dies with a Will, the process to validate the Will by the Court is called PROBATE.  If an individual dies without a Will, the process of determining who will inherit from his or her estate is called ADMINISTRATION.  If there is a Will, the Will will appoint an executor.  It will be the executor’s responsibility to hire an estates lawyer and to take the appropriate legal action regarding the estate.  If there is no Will, an individual who is next of kin to the decedent can ask to be appointed the administrator of the decedent’s estate.

Legal Work in the Estate

If you hire an attorney, he or she will draft a probate petition or a petition for the administration of the estate.  The petition will thereafter be filed in the Surrogate’s Court in the County in which the decedent was a resident of at the time of his or her death.

After the probate petition or administration petition is filed, next of kin and potential beneficiaries will be notified of a court date.  On that court date, any individual seeking to challenge either the appointment of the administrator in an administration proceeding, or the executor in a Will in a probate proceeding can appear in Court and advise the judge that he or she seeks to challenge the estate proceeding.

Executor’s and Administrator’s Duties

When the Will is accepted for probate, the executor or administrator’s duties are to find the assets, liquidate them, and obtain them for the benefit of the beneficiaries.  The technical aspects of handling the funds is usually dealt with by the attorney retained by the administrator or executor of the estate.  Assets of an estate can involve houses, money, stocks and bonds, insurance policies, jewelry, artwork, clothing and other personal items.

Real Estate Issues in Estates

If an individual owns real property outside of New York State (houses, land and other structures on land), an ancillary probate proceeding will be required to be undertaken in the State where the real estate is located.  Surrogate’s Courts in the State of New York only have jurisdiction over real property that lies within New York State.

Accounting of Assets Before Distribution to Beneficiaries

After all of the assets are amassed by the estate, and all of the creditors are paid, the administrator or executor thereafter needs to provide a simple accounting to the beneficiaries showing assets, liabilities and the amount which will be available to be distributed to the beneficiaries.

Fiduciary Responsibility

It should be noted an executor is a fiduciary.  In the event he or she makes mistakes or mishandles funds, they are personally liable to the beneficiaries of the estate for these actions.  It is therefore almost always advisable for the executor or administrator to hire an experienced estates attorney to assist him or her with regard to all aspects of the decedent’s estate.estate litigation lawyer

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What is Needed During a Probate Proceeding?

September 21, 2015 By

estate litigation lawyerA probate proceeding is a proceeding brought to see to it that a Will is accepted as being valid by the Surrogate Court in New York State. The best way to start a probate proceeding is to visit several attorneys and hire an experienced, dedicated estate lawyer. Make sure when you hire this lawyer, that he or she has been doing this for a minimum of ten years and has handled numerous estate matters.

There are a variety of documents which are necessary to assist the attorney in bringing the probate proceeding. The following are a list of some of these items:

  • The original Will. The original Will, not a photocopy of the original Will, should be brought to your attorney’s office.
  • Your attorney will need several original raised seal death certificates. It is suggested, depending on the size of the estate, that you receive a minimum of six, and if there are a number of different bank accounts or securities accounts involved, twelve original death certificates may be helpful.
  • You need to bring with you, when you go to your attorney’s office, a copy of a funeral bill indicating it is paid. Funeral directors have a very strong lobbying group in Albany, and estates cannot be processed unless you show the funeral bill has been paid.
  • You need to provide the attorney with the names and addresses of all of the individuals who are next of kin as well as all the individuals named as beneficiaries in the will.
  • In the event there are minor children involved, the attorney will need to know their names, addresses, dates of birth, social security numbers and the names and addresses of their legal guardians.
  • If you are familiar with the assets of the decedent it is very important you provide the attorney with an itemized list documenting each and every one of the assets the decedent died owning.

If you provide the attorney you hire with all of the necessary information and documents, the estate proceeding will move forward without problems. This can also reduce your legal expenses and the time it takes for the Will to be probated.

It should be noted that once a Will is probated, distribution of the assets is not supposed to take place for a period of seven months. This gives creditors a reasonable period of time to file claims against the estate.wills and estates attorney

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How to Handle an Improper Will

September 6, 2015 By

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

https://youtu.be/diSYdWiNpXU

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his attorneys have more than 100 years of combined legal experience handling all aspects of estate planning and estate litigation.  Please call to schedule a consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

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