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The appointment of a fiduciary is essential for the administration of a decedent’s estate.  Assets that were owned solely in a decedent’s name at death are not accessible unless the Court appoints a duly authorized representative.  Such representative can be an administrator if the person dies intestate or an executor if there is a Last Will and Testament. Both executors and administrators have duties and responsibilities.  Their primary job is to identify, protect and…
A Last Will and Testament in New York must comply with the basic statutory requirements provided by the estate laws.  The primary statute regarding the fundamental aspects of Will preparation and execution is Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements”. According to the statute, a Will is to be in writing, the testator is to sign at the end, and there must be at least two witnesses…
Upon the death of an individual, the process to administer the estate commences.  Sometimes a person leaves a Last Will and Testament.  If there is no Will, then the person dies intestate and the distribution of the estate is subject to the laws of intestacy.  A primary function in administering an estate is to collect and protect estate assets. One type of asset that is commonly owned by a New York decedent, especially in…
It is not unusual that after an executor or administrator is appointed by the Surrogate’s Court that he or she finds out there is estate litigation to contend with.  For instance, the decedent may have left numerous debts which are unpaid and the creditors may decide to bring lawsuits to collect what is claimed to be due. In other cases, a decedent may have been involved in a business or real estate transaction in which…
The procedure and terminology in a case involving a New York estate can be perplexing to those unfamiliar with this area of the law.  Surrogate’s Court matters typically involve statutes that are part of the Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL). The Surrogate’s Court is the forum in which matters such as the probate of a Last Will and Testament or the administration of an intestate estate
The consideration of estate matters in New York always involves a number of variables.  New York, as well as the country as a whole, is comprised of a diversity of personal relationships controlled by numerous laws that are evolving all of the time.  A recent article written by Sarah O’Brien entitled “If you live with your partner and are unmarried, this is what happens when you die,” which appeared at CNBC.com on February 27, 2020,…
After the death of a decedent, a proceeding may be commenced to probate a Last Will and Testament.  Probate proceedings are filed in Surrogate’s Court in the county where the decedent resided. Various individuals may want to contest the Will.  Most commonly, objectants are the decedent’s distributees or next of kin who feel that the Will is invalid for one reason or another.  Surrogate’s Court Procedure Act (SCPA) Section 1410 entitled “Who may file…
Time after time, estate executors and administrators seem to be confronted by a common problem – the sale of estate realty occupied by a family member.  The duty or obligation of the estate fiduciary is to collect and protect the estate assets and satisfy the decedent’s debts and obligations and finally, to effectuate distribution of estate assets according to the provisions of a Last Will and Testament or the laws of intestacy.  The many facets…
Article 81 of the Mental Hygiene Law provides the procedures and requirements regarding guardianship of an incapacitated person.  The statute allows for the appointment of a guardian for property management and for personal needs.  Whether or not a person requires a guardian is determined by the Court after a hearing.  One of central inquiries when determining incapacity is the extent to which the alleged incapacitated person can perform activities of daily living such as caring…
The settlement of an estate typically focuses on the protection and collection of estate assets.  These assets may include bank accounts, retirement funds and other financial holdings.  However, the major asset in most estates is an interest in real estate.  Real estate may be in the form of a single family home, a multi-family residential building, commercial property or even a condominium unit.  While a cooperative apartment is not real property, since the interest is…