New York Probate and Administration of Estates

New York probate law provides that all persons are able to qualify as executor, except for infants, incompetents, non-domiciliary alien (other than a foreign guardian under SCPA §1716(4) or one who serves with multiple fiduciaries at least one of whom is a New York resident), felon, someone who has a history of substance abuse, dishonesty, improvidence, want of understanding or otherwise unfit for office or someone who cannot read and write English (SCPA § 707)

New York Estate Power and Trust Law “EPTL” 11-1.1 provides that the power of the executor includes but is not limited to:

(1) Gather assets of the estate;

(2) To invest and reinvest the property of the estate;

(3) To effect and keep in force fire, rent, title, liability, casualty or other insurance to protect the property of the estate or trust and to protect the fiduciary;

(4) To take possession of, lease, collect the rents from and manage, mortgage and sell real property;

(5) To employ any bank;

(6) To contest, compromise or otherwise settle any claim in favor of the estate; and

(7)  To pay taxes, all other reasonable and proper expenses of administration from the property of the estate, including the reasonable expense of obtaining and continuing his bond and any reasonable counsel fees he may necessarily incur.

A New York executor can face liability for estate losses incurred during the period after the decedent’s death but before the issuance of letters testamentary.  Courts have held that the authority of an executor is derived from the will, not from the letters issued by the Surrogate. See Matter of Yarm, 119 AD2d 754 (2d Dept 1986) citing In re Horowitz Will, 297 NY 252 (1948).  An executor has a duty to preserve the estate assets such as stocks and bond to ensure that they are protected for the beneficiaries.

Bronx, New York probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding.  Needless delay in filing for probate may expose estate assets such as stocks and bonds to market forces resulting in losses to the estate.  Please call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900 to file for probate and preserve the assets of the estate.

New York probate law provides that an objection to the probate of a Will may be filed by any person who is adversely affected by the probating of the Will.  See SCPA §1410; and 22 NYCRR §207.26.  An interested party as defined in SCPA §103(39) may object to the nominated fiduciary by filing objections.  See SCPA § 709.

Bronx, New York probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding.  If you need help filing for probate or objecting to the probate of a Will then call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900.

A distributee or adversely affected person may object to the probate of a for the following reasons:

1. Forgery;
2. Fraud;
3. Duress or undue influence;
4. Lack of capacity of the testator;
5. Lack of proper formalities in the execution of the Will; and
6. Later executed Will.

Bronx, New York probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding.  If you need help filing for probate or objecting to the probate of a Will then call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900.

New York Surrogate’s Court will look at various things including the following items to determine if a Will is valid:

1. Did the testator (decedent) have testamentary capacity?
2. Was there undue influence on the decedent?
3. Was there fraud in the drafting of the Will?

It has been said that “[t]he law jealously guards the right of a person to dispose of his property by will, whatever his condition of health may be, but there comes a time when the ordinary death-bed will, prepared when the testator is sinking slowly but surely to his end, must be submitted to careful scrutiny to determine whether it indeed meets the tests of testamentary capacity.”  See In re Delmar’s Will, 243 NY 7, 10-11 (1926).

In order to prove the testamentary capacity of the decedent, the petitioner must demonstrate that decedent “understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of his bounty and his relationship to them.”  See Matter of Prevratil, 121 AD3d 137, 140 (2014).  Testamentary capacity concerns a person’s mental condition only at the time of the execution of the Will.

The testator need only have a general knowledge of his assets.  The testator does not need to have a precise knowledge of all his assets.  See Matter of Walker, 80 AD3d 865 (3d Dept 2011).

Bronx, New York probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding.  If you need help filing for probate or objecting to the probate of a Will then call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900.

Undue influence is said to occur when a beneficiary overcomes the free will of a testator

and imposes her own will to procure a particular testamentary outcome.  The influence exercised

must amount to moral coercion which caused the testator to act against his free will and desire for which he was too weak to resist.

To prosecute an undue influence claim, an objection must prove by a preponderance of the evidence:

(i) A motive to influence the testator;

(ii) Opportunity to influence the testator; and

(iii) The actual exercise of undue influence.

See Matter of Greenwald, 47 AD3d 1036, 1037 (2008); Matter of Malone, 46 AD3d 975, 977 (2007).

Bronx, New York probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding.  If you need help proving or defending a claim of undue influence or fraud in the probate of a then Will call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900.

In order to prove that a Will was fraudulently executed, the person objecting to the will be admitted to probate must prove that, one knowingly made a false statement to the testator which caused him to execute a will that disposed of his property in a manner differently than he would have in the absence of that statement.

Bronx probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding. If you need help proving or defending a claim of undue influence or fraud in the probate of a Will then call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900.

At a New York Surrogate’s Court Procedures Act “SCPA § 1404” hearing testimony will generally take off the attorney who drafted the will, supervised its execution, together with the depositions of the subscribing witnesses, to determine if the will is consistent with the decedent’s intentions and that the will was read and reviewed by the testator.

SCPA § 1404 estate litigation is a serious matter with major consequences and should not be taken lightly.  To determine if there are enough grounds to object to the probate of a Will an SCPA § 1404 examination may be necessary to determine the validity of the Will.   An SCPA § 1404 examination is conducted similar to a deposition and allows a party to examine the following persons before or after the filing of an objection:

1. The draftsperson of the Will;
2. The attesting witnesses of the Will execution;
3. if the Will contains a provision designed to prevent a disposition or distribution from taking effect in case the Will, or any part thereof, is contested, the nominated executors in the Will and the proponents; or
4. any person whose examination the court determines may provide information with respect to the validity of the Will that is of substantial importance or relevance to a decision to file objections to the Will.

Given the serious financial consequences that flow from a will contest, you must get a knowledgeable and experienced attorney to conduct the SCPA § 1404 examination.

Bronx probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding.  If you need help conducting or defending an SCPA §1404 examination then call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900.

The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformity with the statutory requirements.  See EPTL §3-2.1 (a); Matter of Collins, 60 NY2d 466 (1983); Matter of Rosen, 291 AD2d 562 (2nd Dept 2002).

An attorney may be named an executor of a client’s Will. See SCPA 2307-a.

In New York the decedents estate means all of the property of a deceased person, trust, absentee, internee or person for whom a guardian has been appointed as originally constituted, and like it from time to time exists during administration.  See SCPA 103(13).  EPTL §1-2.63 defines estate as “(a) [t]he interest which a person has in the property. (b) The aggregate of property which a person owns.”

New York Surrogates Court Procedures Act provides that if the executor is unjustifiably delaying distribution of the assets, a beneficiary can bring a proceeding under SCPA §2102(4) to require the executor to pay the legacy or distribute share.

New York law provides a surviving spouse with a “Right of Election” to take the greater of $50,000 or one-third of the net share of the deceased spouse’s estate. The Right of Election must be exercised within six months from the date of letters of testamentary were issued to the executor.  It must be filed no later than two years after the date of death.

An executor must file a wrongful death within two years of the decedent’s death.  See EPTL §5-4.1.

Bronx probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding, medical malpractice and personal injury actions.  If your loved one has been the victim of medical malpractice or wrongful death the law limits the time to bring an action.  Call the Law Office of Bryan J. Hutchinson, PLLC now at (718) 671-0900 to protect your rights.

A Citation is a formal name for a notice that must be served on the distributees of an estate. The Citation tells the distributees that the executor has filed a petition to obtain authority over the property of the estate.  The Surrogate’s Court obtains jurisdiction over the distributes once the Citation is served on them.

When a person dies without a will the person’s assets are distributed based on New York States law of intestacy by an administration proceeding.  See SCPA §103(28).

Any person interested in the estate of an interstate or any person to whose appointment as administrator all distributees consent pursuant to 1001 or a public administrator, the chief fiscal officer of the county, creditor or a person interested in an action brought or about to be brought in which the intestate, if living, would be a proper party may present a petition to the court for a decree granting letters of administration to him or to another person.

New York Surrogate’s Procedures Act § 1001(1) in part provides that “Letters of administration must be granted to the persons who are distributees of interstate and who are eligible and qualify, in the following order:

(a) the surviving spouse,

(b) the children,

(c) the grandchildren,

(d) the father or mother,

(e) the brothers or sisters . . .”

See SCPA §1001(1)

Letters of administration may also be granted to:

(a) to the public administrator, or the chief fiscal officer of the county, or

(b) to the petitioner, in the discretion of the court, or

(c) to any other person or persons.

See SCPA §1001(8)

Bronx probate and administration lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding.  If you need help filing for letters of administration call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900.

In a proceeding for letters of administration process shall issue to all presumptive distributees of the decedent.  See SCPA § 1003(1).

The court may dispense with service of process upon a person who has a right to administration prior or equal to that of the petitioner where it appears that the name or whereabouts of such person is unknown and cannot be ascertained after diligent inquiry.  See SCPA § 1003(4)

Under the New York State Estates, Powers and Trusts Law (“EPTL”), the property of an individual who died without a will should be distributed among the spouse and surviving issue.  See NY EPTL § 4-1.1(a)(1).

The issue is defined as “descendants in any degree from a common ancestor.” See EPTL § 1-2.10.

Under EPTL 4-1.2, a non-marital child “is the legitimate child of his father so that he and his issue inherit from his father and his maternal kindred.”  A marriage ends at the death of a spouse.   See Hunt v Hunt, 75 Misc. 209, 211 (Sup. Ct. Kings Cty. 1912), modified, 154 AD 833 (NY App. Div. 1913).

Bronx probate and administration lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding.  If you are a non-marital child seeking help in protecting your right to inherit from your father’s estate call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900.

A non-marital child may be eligible to inherit from his or her parent if:

(1) order of filiation was properly executed and filed during the father’s lifetime;

(2) the father has signed an instrument acknowledging paternity that meets certain conditions;

or (3) “paternity has been established by clear and convincing evidence,” such as by a genetic marker test or “evidence that the father openly and notoriously acknowledged the child as his own.”   See EPTL § 4-1.2(a)(2)(C).

Bronx probate and administration lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding.  If you are a non-marital child seeking help in protecting your right to inherit from your father’s estate call the Law Office of Bryan J. Hutchinson, PLLC at (718) 671-0900.

Under New York EPTL §4-1.1(a)(1), if a decedent is survived by a spouse and issue, the spouse inherits the first $50,000 plus 50% of the balance of the decedent’s estate and the issue inherits the remaining 50% of the balance of the decedent’s estate.

Generally, the administrator of an estate must be bonded.  See SCPA §805

The Surrogate’s Court generally places an SCPA § 805 (3) restriction on the sale or transfer of real property of the estate. The Law Office of Bryan J. Hutchinson, PLLC is experienced in helping our clients lift the SCPA § 805 (3) restriction by preparing a petition to lift the restriction, obtaining consent from all distributees, preparing a proposed decree, preparing New York State Department of Taxation and Finance Form ET-30, Application for Release of Estate Tax Lien and ET-117  Form, Release of Estate Tax Lien and preparing a New York Citation to issue to all distributees who have not consent to the sale or transfer.

If you are the administrator of an estate, it is important that you hire an attorney to properly obtain a release of liens because you may be held personally liable for unpaid estate tax up to the value of the assets that were distributed before the NYS estate tax was paid in full.

Bronx, New York probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding.  If you need help filing for letters of administration or protecting your rights of inheritance call the Law Office of Bryan J. Hutchinson, PLLC now at (718) 671-0900.

The Court will appoint a guardian of the property of the infant, who can be the surviving parent. If there are no surviving parents and upon the person of the infant.  See SCPA §§ 1702, 1703 and 1704.

Bronx, New York probate lawyer, Bryan J Hutchinson, is knowledgeable in helping the residents of the Bronx, Queens, Brooklyn and Manhattan in all phases of a New York probate and administration proceeding.  If you need help filing for letters of administration or protecting your rights of inheritance call the Law Office of Bryan J. Hutchinson, PLLC now at (718) 671-0900.