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 The Granddaughter claimed that the 1984 agreement superseded the 1978 agreement and, because it contained no clause regarding the transfer of the property by will, that clause was no longer valid.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Because the Granddaughter could not show that the 1984 agreement superseded the 1978 agreement and revoked the promise to convey the property to the Daughter in the Mother’s will, the Granddaughter was not legally entitled to any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.

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.