In New York, Felons Can Now Be Fiduciaries

Bonnie Lawston New York Probate Estate Administration Attorney

Changes to New York Surrogate’s Court Procedure Act. Section 707

Criminal conviction, no problem | Assets all tied up in the estate, no problem

A felony conviction no longer disqualifies one from serving as a fiduciary in an estate in New York State now.  It is subject to the Judge’s discretion, and he may appoint someone who is a convicted felon.  

Your attorney should show the court why you are fit to serve and explain the circumstances of the underlying charges that led to your conviction.  Our office can assist you as we have the knowledge on what is necessary to obtain that approval.

SCPA 707 no longer disqualifies felons from serving as fiduciaries.

New York State legislators changed the Surrogate’s Court Procedure Act section 707 which longer disqualifies an individual from serving as a fiduciary of an estate or trust matter if s/he has a felony conviction.  Effective as of October 22, 2021, a felon can now receive fiduciary letters from the Surrogate’s Court that appoint the felon as an executor, guardian, or trustee in a decedent’s estate.

However, the Court still has discretion to deny the appointment and issuance of letters when there may be a risk or not in the best interests of the estate.   SCPA 707(2)(b) now allows the court to declare a felon ineligible to be a fiduciary where the “crime may be adverse to the welfare of the estate, including but not limited to, crimes such as embezzlement or any crime where there was a misappropriation of money or a breach of fiduciary duty.”

Presenting one’s case is key under certain circumstances when applying for such an appointment and one has a felony conviction.  An experienced estate and probate attorney can best present this case.  

Bonnie Lawston, P.C.

Office Address:1841 New York Avenue, Huntington Station, New York 11746 (No Mail to this Location)

Mailing Address: P.O. BOX 317, RIDGE, NEW YORK, 11961 (Send All mail and correspondence)

Office  (631) 425-7299               Fax  1-866-431-0101

Email: bonnielawstonesq@gmail.com

WWW.LIestateATTORNEY.COM

How do I administer a loved one’s estate ? In two minutes or less…..

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To administer your loved one’s estate depends on several factors.

  • First you must determine if your loved one executed a valid Last Will and Testament or died without a Will.
  • A list of assets need to be made and evaluated to determine the type of assets that your loved one owned at the time of death, how title was held and value of same.
  • The appropriate type of petition and proceeding would then be commenced in Surrogate Court.
  • Marshal the assets, circulate the proposed distribution letters and releases, file all closure estate documents.

Generally, you will need the advice and guidance of an attorney to quickly evaluate the type of proceeding to commence and the proper forms to avoid unnecessary cost and expense to you and the Estate.   Once all the court documents are properly executed and filed, and all notices and jurisdiction issues are satisfied, and a fiduciary is appointed, you would then marshal all the assets and satisfy all liabilities prior to distribution.

Our firm will not only provide you with the guidance to quickly process the administration of an estate, saving you time and money, but also prepare the accounting and necessary releases required prior to distribution so that you are relieved of all liability.

The final documents that are executed by all beneficiaries would then discharge you of any and all personal responsibility.  Upon the completion of the administration of the Estate, whether that be probate matter or intestacy proceeding, you would then receive your commissions or payment for your time and service to the Estate.

Hiring the Law Office of Bonnie Lawston, PC, a firm that is experienced and works for you, saves time and money while maximizing the Estate and your inheritance.

Law Office of Bonnie Lawston, PC
1841 New York Avenue
Huntington Station, NY 11746
https://liestateattorney.com

(631)425-7299

 

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When to Change Your Will

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Change your will to reflect your current wishes and situation

It’s time to write a new will if you’re experiencing a big change in your life, such as moving to another state, getting married or divorced, moving in with a new partner, or bringing a new baby into the family. Your will should be tailored to your current family and financial situation, not the one you faced five years ago or maybe even just last year.
Here are some events that should nudge you toward making a new will and reviewing beneficiary designations you’ve made for insurance policies, bank accounts, and retirement accounts.
  • You get married . You and your new spouse should create new wills when you get married. In most states, your spouse is legally entitled to claim a percentage of your property after you die, unless you have a written agreement to the contrary. This includes married same-sex couples in Massachusetts. If you don’t want to leave at least half of your property to your spouse, see a lawyer.
  • You are unmarried, but have a new partner . Without a will or alternate estate plan, such as a living trust, your partner will inherit nothing. To avoid this, you and your partner will probably want to make new wills. (Different rules apply if you and your partner are registered domestic partners in California, Maine, or New Jersey, reciprocal beneficiaries in Hawaii, or civil union partners in Vermont or Connecticut .)
  • You get divorced . In most states, a final judgment of divorce (or an annulment) revokes any gift made by your will to your former spouse. But in some states, it doesn’t. So no matter where you live, you should make a new will after a divorce.
  • You bring a new baby into the family . You’ll want to make a new will to name a personal guardian for the little one. This is the person you want to raise your child in the unlikely event that both you and the other parent become available.
  • You have new step children . Unless you legally adopt stepchildren, they have no right to inherit from you in most situations. If you want to leave them a share of your property, you should adjust your will.
  • You acquire or dispose of substantial assets, such as a home . If you leave all of your property to one or more people or organizations, there is no need to change your will as what you own changes. But if you’ve made specific gifts of property that you no longer own, you’ll want to avoid leaving the intended beneficiaries out in the cold. (If you no longer own the property, the beneficiaries are probably out of luck; they won’t get anything in lieu of it.) Likewise, if you obtain new property and you want to leave it to someone specific, you’ll need to change your will to make your wishes clear.
  • You’re married and move from a community property state to a common law property state, or vice versa . Community property and common law property states view the ownership of property by married couples differently.  This means that what both you and your spouse own may change if you move from one type of state to the other.
  • You change your mind about who you want to inherit a significant portion of your property . If you decide to leave a share of your property to someone else, you’ll need to create a new will.

Changing a Will

There are two ways to modify a will. One is to add a “codicil” to it. A codicil is a sort of legal “P.S.” to the will, revoking part of it or adding a provision, such as a new gift of an item of property. Simple codicils made sense in the era of typewriters, when creating a brand-new will was a hassle, but today they are normally a poor idea. Codicils can create confusion — sometimes even conflict — and they must be dated, signed, and witnessed just like a will.
It’s usually just as easy to make a new will. In it, you revoke your old one by including a simple statement like this: “I revoke all wills and codicils that I have previously made.” It’s also a good idea to gather all copies of your old will and destroy them.

Changing Other Estate Documents

Don’t forget that much of your property will probably pass outside the terms of your will. For example, individual retirement accounts, joint or payable-on-death bank accounts, stocks registered with a transfer-on-death form, and life insurance proceeds go directly to the beneficiaries you’ve named. Your will has no effect on them. If you’ve changed your mind about who you want to inherit these kinds of property, you’ll need to change the documents on which you named the beneficiary.

Should I put my health care wishes in my will?

If you have a living trust and want to change its terms, you can add an amendment to the original document. You may then need to transfer property in or out of the trustee’s name. Unlike a will, you do not usually revoke a trust and start over if you want to make a change.Remember to review your entire estate plan periodically to see if there are any changes you want to make. Once a year would not be too often.
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Surrogate Court Gives Lifetime Promise Priority Over Will

Perhaps the most common way to transfer property upon death in the State of New York is through a valid will or trust.   What happens, though, if you’ve entered into a binding contract to transfer certain property to a specific beneficiary under you will, but the terms of the document convey it to someone else? Which document takes priority?

The Surrogate Court for Nassau County looked at this specific legal issue in Schwartz v. Bourque, 2017 NY Slip Op 31621 (U)(Sur. Ct., Nassau County, June 14, 2017), concluding that a person who enters into a valid contract to transfer property upon death may not subsequently agree to transfer the property to another person, either while still alive or in a will.

In the Schwartz case, the dispute centered on title to the real property where the decedent and two subsequent generations resided. Initially, the deceased (Mother) was the sole owner of the property, but executed an agreement in 1978 that allowed her daughter (Daughter) to live on the property for as long as she desired, provided she paid the “carrying charges” on the residence. The agreement also promised to convey full legal title to the Daughter in the Mother’s will.

The 1978 agreement was amended six years later, with the preparation and execution of a new agreement and a deed, immediately conveying a one-half interest in the property to the Daughter. In 2012, however, the Mother executed a new deed, attempting to transfer the remaining one-half interest in the property to her granddaughter (Granddaughter). The Daughter objected to the conveyance, arguing that it violated the 1978 agreement. The Granddaughter claimed that the 1984 agreement superseded the 1978 agreement and, because it contained no clause regarding the transfer of the property by will, that clause was no longer valid.

After reviewing the facts, the court ruled that a subsequent contract will only replace and render a prior contract void under one of two circumstances:

  • The subsequent contract contains specific language voiding or superseding the earlier agreement—the court found that it did not
  • The contracts covered exactly the same subject matter—the court found that they did not, as one made a promise of a testamentary disposition and the other did not

Because the Granddaughter could not show that the 1984 agreement superseded the 1978 agreement and revoked the promise to convey the property to the Daughter in the Mother’s will, the Granddaughter was not legally entitled to any interest in the property. Accordingly, the 2012 deed was not valid.

It’s obvious from the facts of this case that an estate matter can become extremely complicated. It’s critical that you have an experienced, knowledgeable and capable lawyer to protect your interests. Probate and Estate Administration Attorney Bonnie Lawston brings more than two decades of hands-on experience in estate litigation to clients across Nassau County and Suffolk County on Long Island, New York.

Contact the Law Office of Bonnie Lawston for all your Probate and Estate Administration matters. 

At the Law Office of Bonnie Lawston, we offer experienced estate litigation counsel to individuals across Suffolk County and Nassau County. Contact our office online  or call us at 631-425-7299 to set up a free initial consultation.

Court Limits Scope of Release Involving Estate and Trust Accounting

It’s pretty common procedure for a fiduciary to a trust to obtain a release, with the objective of waiving the fiduciary’s obligation to provide an accounting of the assets of the estate and trust. A recent opinion from the Surrogate Court in New York County casts some doubt on the potential validity of such releases.

In Matter of Ingraham, NYLJ, June 16, 2017, at p. 28 (Sur. Ct., New York County), the court considered the validity of a receipt and release and ruled that it did not absolve the trustee from the legal responsibility to provide an accounting. In Ingraham, a successor trustee had filed a petition with the Surrogate Court asking that the former trustees submit an accounting. One trustee complied with the request, but the other trustee objected, citing both the language of the trust document, which she argued relieved her from any obligation to provide an accounting; and releases that had been signed and executed by the trust’s grantor and by the other trustee.

According to evidence entered during the proceeding, the document signed by the grantor released the trustee from “any and all claims related in any way to her role as trustee,” other than claims arising as a result of fraud or willful misconduct. The document also included a provision waiving the right to a formal accounting of the trust. The other trustee had executed a similar release.

The court, however, found that that trustee could not use the release to avoid the duty to provide an accounting, citing two specific reasons:

  • The release specifically reserves the right to seek relief if there are allegations of willful misconduct or fraud
  • The duty to provide an accounting is a fundamental aspect of any fiduciary relation, an essential part of a trustee’s duty

The court also concluded that, even if the released waived the grantor’s right to an accounting, it was not legally binding on the other trustee, successor trustees and trust beneficiaries. Furthermore, the court rejected the argument that the trust document waived the requirement that trustees provide an accounting, concluding that the trust document only waived the obligation to provide periodic accountings, not the requirement that there be a final accounting.

When you’re involved in an estate or trust administration dispute, it’s essential that you have knowledgeable, skilled and experienced legal representation. Estate and Probate Attorney Bonnie Lawston has protected the rights of individuals in trust and estate matters on Long Island for more than 20 years.

Contact Probate and Estate Administration Attorney Bonnie Lawston for all your Probate and Estate Administration matters. 

 

Keeping Your Ex Spouse from Being Administrator of Your Estate

In most situations, the last person you would want to give the authority to administer your estate would be a former spouse. In fact, to avoid such a contingency, it’s a fairly common practice for parties to a divorce to include language in the divorce decree prohibiting either from acting as administrator of the other’s estate. A ruling from the Albany Surrogate’s Court, however, has demonstrated the importance of careful estate planning to ensure that such a result does not ensue. Here’s what happened.

In the Matter of Walsh, Jr., the deceased had a child who had priority to serve as the administrator of his estate, but the child was still a minor. Because the child could not serve as administrator, the court needed to appoint a fiduciary. The decedent’s ex-wife, mother to the child, successfully petitioned the court to be the legal guardian of the child. Once she became the legal guardian, she also had authority and became the administrator of the estate.

In response to the appointment of the ex-wife as administrator of the estate, the deceased’s brother filed a motion with the court to remove her, citing the divorce decree, which specifically stated that neither party would serve as executor or administrator of the other’s estate. The court, however, ruled against the brother, concluding that the ex-wife was not serving personally and individually as administrator, but rather as guardian of the minor child.

The upshot of the decision? You need to be very careful when you designate who will act as your administrator, and you are best served to identify specific successor administrators, in the event your primary choice is unwilling or unable to serve.

At the Law Office of Bonnie Lawston, we have extensive experience representing individuals facing similar concerns. We can provide a thorough analysis of your estate planning and implement measures to ensure that your wishes are honored.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299 to set up a free initial consultation.

“No Contest” Provision in Will May Be Contested

A will contest can be an expensive and time-consuming process. While the will contest is in process, beneficiaries will have no access to estate assets. Unfortunately, will contests can often be used to wrongfully gain leverage against other beneficiaries.  As a consequence, it’s not uncommon for a will to contain a “no contest” or “in terrorem” clause, which typically states that any beneficiary who unsuccessfully challenges the validity of a will automatically forfeits any bequest granted in the will.

That does not mean, however, that a potential estate beneficiary may not challenge the validity of a will. Under the provisions of the Surrogate Court Procedure Act (SPCA), an estate beneficiary has the right to engage in “preliminary discovery,” i.e., to gather initial evidence, to adequately assess whether a will may be successfully challenged. Among the various methods by which a beneficiary can gather evidence to evaluate the potential validity of the will are:

  • Production of written documents
  • Testimony of the attorney who prepared the will, as well as any witnesses who attested to the validity of the will
  • Testimony of named executors or proponents of the will, but only if there is a no contest provision in the will

Furthermore, if there is a no contest clause, the court may grant potential claimants the right to gather any information that may be relevant to the validity of the will. Such information may include evidence regarding the mental capacity of the person executing the will, as well as evidence regarding financial matters. For example, in Matter of Liebowitz, in a ruling issued in February, 2016, the court ruled that allowing beneficiaries to gather evidence from the deceased’s business manage would not invoke the provisions of the will’s no contest clause, provided the evidence was sought to establish or challenge the validity of the will.  Some discovery is allowed. The provision of “no contest” clause does not take effect in most jurisdictions until you file formal Verified Objections.

Successfully settling an estate can be an extremely complicated process, even when there’s no “no contest” provision. Don’t try to handle it on your own. Attorney Bonnie Lawston has the knowledge, skill, experience and resources to protect your interests.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299 to set up a free initial consultation.

The Right to Discovery in Probate Litigation

When someone dies with a will in New York State, that person’s estate must generally be “settled” through filings and proceedings overseen by the probate court. Referred to as probate, this process can often be done without the need for litigation. However, when there are issues about which executors and heirs disagree, probate litigation may be the only way to resolve the dispute.

An essential part of the litigation process is what is known as “discovery.” The discovery phase of a trial is that period where all parties seek to obtain (and are usually required to share) all evidence related to the matters in dispute. Discovery can be accomplished in a variety of ways, through depositions, through the production of relevant documents, and through answers to written questions, known as interrogatories. A couple recent opinions handed down by the Surrogates courts have specifically addressed and clarified the rights of discovery in probate contests.

Matter of Shure

In an opinion handed down in early December, 2016, the Manhattan Surrogates Court confirmed that a third party had to disclose information to allow potential estate beneficiaries to determine whether an executor had breached a fiduciary duty. In Matter of Shure, a co-executor asked the Surrogate Court to compel Chase Bank to provide certain information that involved the estate, information that included reference to internal bank procedures. The co-executor cited SCPA (Surrogate’s Court Procedure Act)2103, which allows discovery of documents and testimony to confirm or deny the existence of assets or property that might belong to an estate. The court recognized Chase Bank’s need to maintain confidentiality of its internal policies, so allowed the co-executor access to the information, but required that the parties enter into a confidentiality agreement.

Estate of Melendez

In this opinion, released in November, an executor sought discovery of documents related to the deceased’s purported spouse, who had attempted to exercise a spousal right of election to the estate (see our blog on the right of spousal election in New York). The executor had alleged that the right of election could not be exercised because of the existence of a prenuptial agreement signed by the alleged spouse. The court held that discovery of passport and border crossing records was reasonable.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299  to set up a free initial consultation.

Matter of Van Patten—Representation by Counsel

If I am an executor, administrator or trustee, do I need an attorney and who pays for it? Why spend the money? 

The answer is that you should. Since the duties of a fiduciary involve actions that required legal counsel, any non-attorney executor (or fiduciary) who personally handle all estate matters (without retaining counsel) has engaged in the unlawful practice of law.

Matter of Van Patten—Representation by Counsel

One of the fundamental functions of a last will and testament is to name an executor, the person designated to oversee the orderly distribution of the assets of the estate. Though there are clearly situations where it’s essential for the executor to retain legal counsel to settle the estate in the probate court, there can also be situations where the executor might find it problematic or perhaps even unnecessary to hire a lawyer to probate a will. The estate may lack the resources to pay legal counsel. An important question, then, is whether an executor can handle all the duties required to probate an estate without hiring legal counsel.

As a general rule, in a court of law, a person need not be an attorney to represent his or her own interests.” This type of representation is known as pro se representation. However, the rule does not extend to representation of others.

A 2014 opinion from Manhattan Surrogate Court addressed the issue of whether or not an executor is required to retain legal counsel to complete his or her legal duties. In Matter of Van Patten, the court rejected the argument that an executor could act without representation from legal counsel, concluding that an executor was bound by the fiduciary duty to act in the best interests of others, and not in his or her own interests. The court further found that an executor who is a party to court proceeding is there on behalf of anyone with a potential interest in the estate. Accordingly, because those duties involved actions that required legal counsel, any non-attorney executor who personally handled all estate matters (without retaining counsel) had engaged in the unlawful practice of law.

The executor in Van Patten challenged the ruling, arguing that she was the only beneficiary of the estate, so she was essentially the acting in her own interests. The court disagreed, finding that she had a responsibility to creditors of the estate as well. The court then ordered the executor to hire legal counsel or risk have the estate’s objections to the trust accounting dismissed.

If the estate does not have the liquid funds but real estate and similar types of assets, our office has special deferred type of retainers that assist you and the Estate.   Upon qualification, the legal fees can be paid at the end by the Estate or from one’s inheritance.  The Estate pays for all legal fees and expenses when the firm represents the fiduciary. For a free consultation, please contact our office.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at (631)425-7299  to set up a free initial consultation.