Articles Posted in Wills & Trusts

The fiftieth anniversary of the March on Washington was recently acknowledged, celebrating the great civil rights battle for equality for our African-American citizens. More recently, same-sex couples have also been engaged in their own battle for equal treatment in issues such as the right to marry, taxation, health and pension benefits, and similar property and economic matters.

In June, 2013, the United States Supreme Court struck down the Defense of Marriage Act of 1996 (“DOMA”). DOMA specified that “…the word “marriage” means only a legal union between one man and one woman…and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife”. The case at issue involved a lesbian couple who were married in Canada. One of the parties died and left her estate to her partner. The surviving widow filed the federal estate tax return that was due. Because the federal government did not consider the couple married for estate tax purposes, the estate was not qualified to apply the marital deduction available to heterosexual married couples, increasing the estate tax bill by several hundred thousand dollars. The Supreme Court ruled that it is a violation of equal protection principles and an infringement on state sovereignty for the federal government to maintain such a position. In Windsor, the Court determined that same-sex married couples are to be treated as married heterosexual couples and ordered the refund of the excessive tax payment.

In late August, 2013, the Internal Revenue Service issued a subsequent ruling that legally married same-sex couples will be recognized as married, even if the state in which they live does not recognize same-sex marriages. Our readers should know that two legal standards are at play. The “place of celebration” standard mandates that a couple will receive benefits as long as they are legally married, regardless of whether the state in which they now live recognizes the union. The “place of residence” standard mandates that if the state in which the couple lives does not recognize their union, then the couple will not receive benefits.

Our readers may be aware of an unusual estate litigation in New York City. Huguette Clark died in 2011 at the age of 104. Being the only surviving child of a copper mining magnate, she left a fortune of approximately three hundred million dollars. Ms. Clark was also highly eccentric. After being hospitalized for a purported legitimate medical condition in New York’s Beth Israel Medical Center, she spent her last decades housed in that hospital, despite having an apartment on Fifth Avenue and at least one mansion in which to reside.

Two Wills are being contested in the litigation, both of which were made within one month of each other when Ms. Clark was 98 years old, six years before her death. The first Will left her estate to distant relatives who were not named and with whom she did not have a personal relationship. The second Will disinherited the distant relatives, increased the bequest to her caregiver, left a bequest to a goddaughter and established a foundation. An art museum in Washington, DC is challenging a bequest of artwork, instead advocating for cash. The state and federal estate taxing authorities are involved in the litigation because additional estate taxes will be due should the case be determined in a particular way.

While due to the large sums of money involved, many people cannot relate to the problems that have arisen in this case, even smaller estates can be subject to some of the same issues. For instance, dying without surviving close relatives opens the door to distant relatives such as first cousins once removed having the authority to challenge a Will offered for probate. In addition, estrangement from close relatives who are not beneficiaries under the Will could result in a Will challenge. People without living relatives or who have estranged relationships are vulnerable to intrusion into their estate plan by caregivers and institutions in their final years. Would Beth Israel Medical Center have allowed Ms. Clark to remain for decades, even if she paid for her housing, if a large bequest had not been negotiated? While the caregiver was undoubtedly of great value to Ms. Clark, did the dependence engendered by the relationship encourage too large a bequest?

Our readers who follow politics know that members of Congress have battled in recent years with respect to revisions to the tax law. Specifically, estate, gift, and income taxes have been subject to adjustments. The purpose of this blog post is not to describe the specific changes made to these laws. The laws in this area are fluid and heavily influenced by politics, making them subject to change at almost any time. Because our readers cannot rely on consistency in the tax law, they must be mindful of their estate plans, beneficiary designations, and means by which title is held. The goal is so that intended recipients receive intended assets and that taxes are reduced as much as legally possible.

Further, while some of the tax laws have been revised at the Federal level, they have not been so adjusted in New York State. As such, estates valued at more than one million dollars are subject to New York State estate tax. In the New York metropolitan area, it is easy to accumulate one million dollars in assets, which could be deemed the value of real estate (net of the balance of a mortgage), life insurance policies that are considered to be revocable and other assets.

In any tax climate, estate planning will always be needed for the purpose of naming guardians for minor children, providing for beneficiaries with special needs such as those with physical or mental disabilities, identifying those persons desired to serve as executors and for establishing business succession plans. People with property in multiple states also require estate planning services, as different states may have their own estate tax, necessitating strategies to achieve tax reduction. In addition, same sex couples require estate planning, even if they reside in a state where they are considered legally married, to determine the allocation of assets in other states and to ensure that the spouse receives intended assets, rather than blood relatives.

This blog post contains a description of some of the standard substantive objections that a person may have to the admission of a Will to probate. Estate practitioners deem these objections the “four horsemen”. Due execution, testamentary capacity, undue influence and fraud comprise the four horsemen.

Due execution is known as the Statute of Wills. The proponent of the Will must show by the fair preponderance of the evidence that the Will was signed at its physical end in the presence of at least two disinterested witnesses. At the time of execution, the person making the Will should make it known to the witnesses that he is signing his Will and wants the witnesses to act as witnesses. Due execution is assumed if an attorney supervised the Will execution “ceremony” and if the Will contains the legal attestation clause. Our firm is mindful of New York’s execution requirements and conducts the Will signings that it supervises in accordance with the statute.

Testamentary capacity, the ability to make a Will, is broadly defined as every person over eighteen years of age who is of sound mind and memory. The Court will look to the testator’s capacity at the time that the Will was executed. Elements that the Court will consider include whether the testator understood the meaning of the Will’s provisions, the nature and extent of his property and the “natural objects of his bounty” (the identity of his family members or friends). Old age, dementia, and physical infirmaries such as blindness are not automatic disqualifiers depending upon the condition of the person when he signed his Will.

Inquiries are often made of our firm as to whether a claim can be made which may dispute the terms of another person’s Will and the proper time and legal mechanism for doing so. This post will address the issues that arise in a Will contest. As our readers may know , when a person dies with a Will, the proposed Executor must submit the original Will and other required documents to the Surrogate’s Court in the County in which the deceased resided and request that Letters Testamentary be issued appointing the person as Executor. This process is called probate.

In the probate proceeding, the Surrogate’s Court will require a signed Waiver and Consent from all distributees (those who would inherit if there was no Will) or proof of service of a Citation should these parties be unwilling to sign the Waiver and Consent. The time between the service of the Citation on an objectant and the return date of the Citation (the date scheduled by the Court to hear objections to the admission of the Will to probate or else the proposed Executor will be appointed) is the appropriate time to submit objections to the Will.

New York statute grants broad authority to file objections to the probate of a Will. Essentially, any person who would be adversely affected if the subject Will is admitted to probate may file objections. One exception to this broad rule is that good cause must be shown if the basis of the objectant’s claim is the disqualification from receiving commissions as a fiduciary.

For various reasons, not everyone dies has a Will that disposes of their property and identifies the person authorized to manage such distribution. In such a case, the surviving heirs should engage the services of an attorney to submit a Petition to the Surrogate’s Court in the County in which the deceased resided for Letters of Administration. Once duly appointed by the Court, the Administrator has similar powers to an executor for an estate. The Administrator locates, collects and distributes assets and settles claims and liabilities against the estate.

When a person dies without a Will (legally known as “intestate”), their assets will be distributed to particular classes of relatives, in the order prescribed by Estates Powers and Trusts Law Section 4-1.1 . For instance, if a person left no surviving spouse, children, or parents, his assets would be inherited by his sister. The common perception that the assets of a person dying without a Will “go to the state” is a myth when a relative in the proper class has survived the deceased. In an administration proceeding, the person who will inherit the assets is the proper person to act as petitioner and commence the proceeding. Survivors who have superior or equal rights to be appointed Administrator (such as siblings of the proposed Administrator) are to submit a Waiver, Renunciation and Consent to the appointment of the Administrator along with the Petition.

The petitioner is required to confirm that she conducted a diligent search in the deceased’s personal papers and safe deposit box, but did not find a Will. Such a diligent search should also include the Surrogate’s Court record retention files, in the event that the deceased filed her Will with the Court.

A recent article in the New York Times addresses the interesting question of whether a testator (a person who has made a will) can “attach strings” to a bequest (a gift by will of personal property). Wealthy philanthropists have left collections of artwork to museums and have specified conditions on the bequest, such as all works of art need to be displayed together or never sold. When a donor leaves such property in a will and the intent of the bequest is no longer being met, the museum or other institution to which the donation was made cannot request that the donor change the conditions or request a clarification of the donor’s intent, because the donor is deceased. In some cases, institutions have sought Court intervention to address donor intent and request a change in conditions so that donor’s intent is achieved.

The most well-known case in recent years involves the Barnes Foundation. Dr. Albert Barnes possessed a comprehensive collection of post-impressionist and early modern artwork. He specified the specific manner in which the artwork was to be displayed and that it was to be displayed together in a building owned by the foundation in suburban Philadelphia. The foundation was to conduct educational programs and never move from its location. Over time, the foundation experienced financial problems that jeopardized its very survival. In order to maintain the institution at all, the Attorney General and Governor brought suit to request an order permitting the foundation to move from suburban Merion to downtown Philadelphia. The Court agreed that relocating the foundation was necessary to preserve the foundation.

There are many situations where an arts institution has requested the Court’s intervention in revising the terms of a bequest in a will or a gift in a charitable trust. The Attorney General, as the supervisor of charitable organizations, may also participate or lead such lawsuits. The reasons behind requests to reform the conditions of a bequest could be based on financial considerations. Perhaps the institution needs to sell the artwork to raise funds in order to avert bankruptcy, or the artwork is later deemed not to be attributed to the artist as assumed by the donor.

Prevailing law in New York State favors the making of a Last Will and Testament. The person making the Will (called the testator) may leave his property to any person that he chooses. However, those who would inherit if the testator did not make a Will, known as intestacy, have the right to legal notice when the Will is eventually offered for probate. New York notice requirements allow the persons who would be notified (called distributees) the opportunity to contest the Will being offered for probate if they choose. If their contest is successful, the distributees may have the Will overturned, resulting in intestacy, as if there were no Will, or negotiate a settlement from the Estate in order to pragmatically dispose of the contest. This process is easy to imagine if the person offering the Will for probate knows who to contact in order to deliver the legal notice that the Will is being offered for probate. This post will discuss how “ghosts” are treated under New York law.

A ghost is a term describing a person who we think could or has existed, but we do not know their name or whereabouts. Examples of ghosts are as follows. The testator had a brother with whom she became estranged. As a result, no one knows if the brother is alive or where he may live. While no one may expect the testator to leave her estate to her long lost brother, instead of to her best friend, the Court will still require efforts to locate the brother before admitting the Will to probate. Another common example is when an elderly testator (who was an only child) never married and left no children or grandchildren. This testator’s distributees could be first cousins or first cousins once removed. The Court will require efforts to locate these persons.

The ghost, having an interest in the proceeding, has the right to appear in Court on the return date of the Citation on which it is named. Since the ghost may not actually exist or may be unable to be found, the Court will appoint an independent attorney, known as a Guardian ad Litem, to represent the interest of the ghost. The Citation must be advertised in a newspaper as identified by the Court. Sometimes the Court selects a newspaper that offers the most competitive rates for the Estate, while in other cases the Court may select a newspaper of ethnic interest if the ghost may be of a specific ethnicity. After the Court appearance marking the return date of the Citation, the Guardian ad Litem will issue a written report as to whether admitting the Will to probate is recommended.

When an estate in New York is probated in Surrogate’s Court , it is a legal requirement to submit the original signed will as part of the Court filing. On occasion, the original will intended to be submitted may be lost or destroyed. There are several potential reasons for the original being unavailable, perhaps it is simply misplaced, a person adversely affected by the will may have intentionally destroyed the document or the decedent decided that the will no longer conformed to his wishes for the disposition of his property and destroyed the document prior to his demise.

Surrogate’s Court Procedure Act Section 1407, the statute that governs probate proceedings in New York State, provides solutions to this situation. In New York State, it is presumed that a will has been revoked if the original can no longer be located, particularly if it was signed and the original was known to be kept in the testator’s possession. The person proposing to have a copy or a draft of a will admitted to probate needs to demonstrate by clear and convincing evidence that the will has not been revoked, that the will was executed as required by New York State law, and that the testator had capacity to make the will, which was entered into without fraud or undue influence. At least two credible witnesses are then required to testify as to the provisions of the will or a copy or draft of the will that is true and complete is to be submitted to the Court. A photocopy of the will may then be admitted to probate in this instance if it is demonstrated that the original will was not last in the possession of the decedent. However, the fact that the testator possessed a fully executed copy of the will at his death will not prevent said copy from being admitted to probate.

Further, if the will was lost or destroyed by a cause not of the decedent’s act, the Surrogate’s Court will be likely to admit the will to probate. The witnesses may indicate that the will was destroyed without the knowledge or consent of the testator or that the will was destroyed when the testator was under undue influence or without mental capacity to revoke. Acceptable causes of destruction for these purposes include a fire at the facility where the will was stored. The recent anniversary of the terrorist attacks on September 11, 2001 reminds us that storage locations were also destroyed on that day and that important documents such as wills were also ruined. If the proponents of the will can show that the attorney who drafted the will or the bank with the safe deposit box holds the original, but for some reason cannot or will not release same, the Court will be likely to admit a copy of the document to probate.