New York Estate & Probate Attorney Law Office of Bonnie Lawston

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We can help you serve the estate and maximize your inheritance taking advantage of our expertise, avoiding pitfalls that estates fall into and taking advantage of all the tax laws and the applications of the tax laws to maximize the estate.

Our firm has been dedicated to protecting your rights and interests as our clients, servicing Long Island for over 28 years. Our firm focuses on probate and estate administration, estate litigation and all trust matters. All types of estate matters are handled and resolved including will contests, spousal rights protected, accounting matters including contested judicial accountings, fraudulent actions by fiduciaries, lost will proceedings, intestacy proceedings and kinship matters.

In assisting clients, we have developed and able to offer deferred retainers to help those who do not have the financial means or liquid funds to retain an attorney right away. The best thing that you can do to protect your interests is to hire an attorney right away. Many of our clients cannot afford to do that so we have developed plans to help solve that problem.

Our clients reside all over the United States while serving as a fiduciary for a New York Estate matter or are a beneficiary of a New York Estate matter. Ancillary matters handled as well as those estates that have contacts with Florida as our attorney is admitted to practice law in New York, Connecticut and Florida.

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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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.

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.

What Happens If You Can’t Locate a Will?

So you spend the time and money to carefully plan out your estate and you prepare and execute a will that ensures that your property goes exactly where you want it to. Once you’ve made it official, you put the original copy of your last will and testament with your other important papers, in a file cabinet in your home or study.

That could be a big mistake! In the state of New York, if the original copy of your last will and testament cannot be located after your death, there’s a high likelihood that it won’t be admitted during the probate proceedings, even if you can find a copy. That’s because, in New York, if a will was known to be in the decedent’s possession, but cannot be found, there’s a presumption that the will was revoked. That presumption can only be overcome by affirmatively showing that:

  • The will has not been revoked
  • The will was properly executed
  • The provisions of the will are clearly and distinctly proven by either two credible witnesses or by a copy of the will shown to be true and complete

As a practical matter, overcoming the presumption of revocation is extremely difficult, as it can be challenging to prove conclusively that the decedent did not revoke the will.

A 2015 decision by the Queens County Surrogate upheld this presumption. In Matter of Massimo, testimony indicated that the deceased was known to have an original copy of his last will and testament, as well as a codicil, in a Federal Express envelope in his sock drawer. At his death, however, family members could not find the original copies of either document, but were able to find photocopies. It was also proven that one family member, who had the motive and opportunity to destroy the original will, had entered the decedent’s residence.

The court, following established New York law, found a presumption that the will and codicil had been revoked. The court further concluded that, absent concrete evidence that a family  member had destroyed the original will, the presumption that the decedent had voluntarily revoked it could not be overcome.

This office has been successful under certain circumstances to probate a copy.  There is a series of steps or requirements that one must meet in order for the Court to accept a copy.   For example,  if the original Will was known by another disinterested person to be in the possession of the testator,  had seen it recently, discussed it with the Testator and the home where the Will was kept was destroyed by a storm or fire.  Under limited circumstances, a copy may be admitted to probate.

Our office can evaluate your case and determine if such a proceeding is appropriate or it an intestacy proceeding is necessary.   Should you have any questions, please contact our office to speak with an attorney or our staff.

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.

“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.

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.

What to Do When a Loved One Dies

When a loved one dies, the emotions you experience can paralyze you, causing you to neglect to handle some of the most basic tasks. That can complicate matters significantly.
Here’s a checklist of the steps you need to take following the passing of a loved one:

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