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When a Last Will and Testament is filed with the Surrogate’s Court for probate, a number of procedural steps must be followed.  The Will itself is accompanied by a Probate Petition.  The Petition contains essential information regarding the decedent, the date of death, the names of the attesting witnesses, the date of the Will and the estimated value of the probate estate. Another very important part of the Probate Petition is the listing of names…
Article 81 of the New York Mental Hygiene Law (“MHL”) provides the statutory provisions covering the appointment of a Guardian.   A Guardian may be appointed for personal needs and also for property management. The procedure set forth in the statute to commence a Guardianship proceeding is straight forward.  MHL section 81.08 states that there should be a petition that needs to include information regarding the alleged incapacitated person (“AIP”) such as name age and address…
The administration of a New York estate typically has three phases.   At the outset, a fiduciary needs to be appointed such as an Executor or an Administrator.  Once there is someone in an official capacity to handle the decedent’s affairs, the process of locating and collecting assets can begin.  Also, estate debts and obligations must be determined and resolved.  Both of the above phases can cause delays in finalizing the estate due to such…
There are many requirements in New York estate law concerning the proper execution of a Last Will and Testament.  The basic statute setting forth these rules is Estates, Powers and Trusts Law (“EPTL”) section 3-2.1 entitled “Execution and attestation of wills; formal requirements”.    The validity of a Will requires that a testator sign the Will at the end and that there be two attesting witnesses. When the statutory formalities to execute a Will are not…
In Surrogate’s Court proceedings there are many instances where a party can file Objections.  Estate Litigation usually involves matters that are commenced with a Petition.  For example, in Probate Cases, the probate process is started by filing a Petition for Probate and Letters Testamentary.  Similarly, when a decedent dies without a Last Will, a petition for Letters of Administration is filed to begin the process to administer an intestate estate. Another example of a Surrogate’s…
Probate in New York is the process by which a Last Will and Testament is validated by the Surrogate’s Court.  When a Will is admitted to probate the provisions of the document are given full force and effect.  The Court then issues Letters Testamentary to the appointed Executor. The probate process can be rather complex.  One of the most important aspects is providing notice of the proceeding to the decedent’s distributees (next of kin).  This…
All fiduciaries such as Trustees, Executors and Administrators must properly perform their duties.  When there is a breach of fiduciary duty, a Court can suspend the fiduciaries’ powers or remove them from office. Revoking the appointment of a fiduciary is not easily accomplished.  The Courts typically respect a person’s choice of Executors or Trustees and try to follow the intentions in a Last Will or Trust.  However, there are circumstances when revocation and removal…
It is important for a New York domiciliary to engage is proper estate planning.  A lot of time and effort usually goes into creating a Last Will, Living Trust, Health Care Proxy, Power of Attorney and other planning initiatives.  It is always a tragedy when a well thought out estate is thwarted by errors relating to ambiguous or defective Will or Trust provisions or defective execution procedures. The New York Surrogate’s Courts are filled with…
Estate Planning in New York can include the creation of a number of different papers such as a Last Will and Testament and Living Trust.  Also, a person may prepare a Durable Power of Attorney, Living Will and a Health Care Proxy. At the outset of the drafting of these papers, it is important for the creator to fully ascertain the nature of his assets and the manner in which title to them is held. …
The settlement of a decedent’s estate involves numerous activities.  When a person is appointed as the Administrator or Executor of an estate, one of the most important fiduciary duties is to locate and collect the assets that were owned by the decedent.  In some estates this task can be uncomplicated.  If the decedent owned bank accounts, real estate or funds in  a financial institution which the Executor or Administrator was aware of, the various forms…