Articles Posted in Wills & Trusts

Every person who dies, whether wealthy or not, will owe money. Whether there is a credit card balance outstanding or estate taxes due to the State of New York, most people will leave this world with a financial obligation of some type. The questions to be addressed in this blog post involve how the fiduciary of the estate should address such debts and whether the fiduciary is personally responsible for the debts. Also, should debts of the deceased be deducted from estate proceeds before distribution to beneficiaries?

The first step is to analyze the types of potential debts. There are secured and unsecured debts. Secured debts are collateralized, such as a mortgage recorded against the house in which the deceased lived, or a car lease. An example of an unsecured debt would be a credit card balance with Visa, Mastercard and the like. Other common unsecured financial obligations include funeral expenses, administration expenses of the estate, estate taxes due to the state or federal government and real estate taxes on property owned by the deceased. Of course, ordinary bills from utilities and doctors will most likely be received.

The fiduciary of an estate in New York is called an Executor if there was a Will, or an Administrator if there was not a Will. Such a fiduciary is charged with collecting all assets of the estate, paying all legitimate obligations, and distributing the balance, if any, to the beneficiaries of the estate. Being a fiduciary is a significant responsibility. Provided that the fiduciary acts ethically and in good faith, he will have no personal obligation for financial obligations of the estate.

Maurice Sendak was a beloved children’s book author and illustrator whose death two years ago has raised multiple issues to be discussed in this blog post. During his life, he had a close professional affiliation with the Rosenbach Museum and Library in Philadelphia, whereby he lent a vast majority of his books and illustrations for viewing by the general public. He also had a caretaker who managed his personal affairs for decades and was very knowledgeable about his preferences. Mr. Sendak’s Will provided that his caretaker would be one of three executors. It also left some valuable original book manuscripts to the Rosenbach and established a foundation. It was his expressed wish in the Will that the foundation retrieve the works that were on loan to the Rosenbach and display them in the house in which he lived for many decades. The house was to be developed as a study center. We have written another blog post concerning stipulations on bequests that is reminiscent of this situation. After his death, the three executors sought to retrieve the works on loan to the Rosenbach in accordance with Mr. Sendak’s wishes. The Rosenbach objected and commenced litigation against the estate on several grounds to be discussed.

The Rosenbach’s attorneys objected to the caretaker serving as executor. Mr. Sendak had the foresight to appoint two other people to serve jointly as executor, although this was not legally necessary. Testators have wide latitude in the appointment of executors. Generally, even an estate beneficiary does not have cause to object to the testator’s designation of executor. Although some executors may have had a “confidential relationship” with the deceased, such as a clergyman or doctor, a confidential relationship does not on its own disqualify an executor. In this instance, the caretaker had a long standing relationship with the deceased, making her a natural choice to serve. Another objection was that she was unsophisticated in business matters and not suited to her position. In having two other individuals serve jointly, Mr. Sendak may have considered that the caretaker was best to dispose of works due to her personal knowledge while the other executors may have been better suited to the business matters to be confronted by the estate.

Although these factors do not seem to be present in this case, executors can be disqualified for particular reasons. Executors are fiduciaries who owe a duty to preserve estate assets and not engage in self-dealing. For instance, if the caretaker was found to have taken the artwork for her own use and sale for her own benefit, estate beneficiaries could approach the Court and make a formal legal request for her removal as executor. Further, an accounting procedure could be commenced to require the executor to demonstrate the proper collection and disbursement of estate assets.

People are leading increasingly complicated lives, in that they spend their time in several locales, some of which may not be their place of residence. If a person is fortunate, they may develop an affection for a particular area and buy a second home in such area. Likewise, they may inherit a beloved family home in a location where they do not live. When such a person passes away, the disposition of all of their property, no matter where located, must be addressed. The question to be explored in this blog post is which Court has jurisdiction over which property.

If a person dies with a Will, the legal proceeding would be entitled a Probate proceeding. If there is no Will, the legal proceeding is called an Administration proceeding. How does a person know where a Probate or Administration proceeding should be brought if a person owned property and even lived in several locations?

Venue is the legal term for the proper location of a legal proceeding. The Surrogate’s Court Procedure Act defines venue as the county of domicile at the time of death. Generally, proper venue for an estate proceeding will be the county identified as the residence of the deceased on the death certificate. Common sense rules also dictate. If a person owned a home, worked, socialized, or paid taxes in a particular area, then venue would be proper in that county and the estate proceeding should be filed in the same county.

Evil stepmothers are not only found in popular culture, as epitomized in Cinderella . Such persons are commonly the subject of events reported by the New York press. Estate conflicts often arise between children of a prior marriage and a more current spouse. Such persons inherently have potentially differing interests. The new spouse may have been attracted to the parent because of the parent’s financial success. The child may be resentful that their parent has decided to remarry.

For instance, Casey Kasem was a beloved radio personality whose end of life was dominated by a battle between his children from a prior marriage and his second wife. Most of the disputes between the parties involved end of life care as well as an unsavory argument over burial arrangements. Mr. Kasem did the prudent thing and had the equivalent of a living will and health care proxy prepared for him, instructing his caretakers to remove life support mechanisms if his prognosis was such that he would not survive on his own. Because his second wife refused to follow his written instructions, his daughters had to petition to a Court for an order requiring the medical facility to respect his wishes. In order to make the best effort to allow for last wishes to be observed, we suggest that our clients allow us to prepare a living will and health care proxy for them and to make same available to medical providers. These documents can instruct that life sustaining mechanisms be left on or terminated, as our client desires. Further, making funeral arrangements and pre-paying for same is another way to make sure that one’s end of life wishes will be respected.

The New York Post also recently reported a dispute between a famous Broadway producer’s son from a prior marriage, his grandchildren, and his fifth wife. The fifth wife allegedly depleted the estate by spending large sums on herself and for purposes that suited her prior to her husband’s death. If the money was held in a joint account with her husband, this spending, even if excessive by some standards, is legal. The Broadway producer should not have had joint assets with his fifth wife. Another method to be used to protect and preserve the assets for the intended beneficiaries would have been to establish a trust, preferably an inter vivos trust in this instance, with anyone besides the stepmother being the trustee. We have written extensively on trusts in prior blog posts. Certainly, one of these types of trusts would have protected assets for the grandchildren.

New Yorkers seem to be “taxed to death”, paying the highest average property taxes in the country. We are the only state that charges a tax for the making of a mortgage. The tax burden does not end at death, as New York also has its own estate tax. Governor Andrew Cuomo, seeking re-election this year, has been encouraging the state legislature to reduce these burdens.

Estates may be subject to both federal and state estate taxes. During the past thirteen years, the federal estate tax has been modified. The federal taxable exemption now stands at a generous amount of $5,340,000.00 per person. This generally means that estates that do not exceed this amount are not subject to federal estate taxes. As many people do not have estates that exceed such amount, federal estate tax is not a concern for most families. However, New York State has levied an estate tax on estates exceeding $1,000,000.00 until a revision to the law was passed in April of this year. Since many New Yorkers could easily have assets exceeding $1,000,000.00, considering high property values, many of our residents have been subject to state estate tax.

The revision to New York’s estate tax law now provides that the exemption will immediately rise to $2,062,500.00, so that only estates valued above that amount will be subject to New York state estate taxes. Further, each April, the state estate tax exemption is set to rise by $1,062,500.00, until it reaches $5,250,000.00 in 2017, then the exemption will continue to rise to close to $6,000,000.00 on January 1, 2019. Tax liability will certainly be a “moving target” during the next five years.

Our clients have inquired as to the consequences of the termination of a martial relationship upon rights in a New York estate. The resolution to this issue depends upon whether the relationship was legally terminated through a divorce and whether the estate is being conducted as an administration or a probate proceeding. Many of us are familiar with those whose relationships end, but who do not legally end the relationship by applying for and obtaining a legally binding divorce decree. In some cases, one of the partners relocates and is estranged to such a degree that they are unable to be found. In order to complete the estate proceedings, private detectives may be needed to determine if the relocating spouse predeceased, making them unqualified to inherit, or to ensure that notice as required by the Surrogate’s Court is effectuated. In other cases, the parties have a cordial breakup and interact often. However, in either case, the spouse is entitled to inherit from the deceased party’s estate, unless a judgment of divorce was obtained during the lifetime of both parties. The Surrogate’s Court will often request a copy of the judgment of divorce, so it is important for parties to maintain such significant documents in an accessible location.

In the instances when a divorce was not obtained, this blog post will analyze the distinctions between an administration and a probate proceeding. This blog has discussed in general terms an estate administration proceeding, which is appropriate when a person dies without a will (intestate). New York’s Estates Powers and Trusts Law provides that the spouse receives the entire estate if there are no children. If there are children, the spouse will still receive $50,000.00 plus one-half of the rest of the estate. Certainly, a separated person would not wish for his spouse to receive the bulk of his estate, but this would be the result in an administration proceeding.

Should such a separated person not wish to divorce, he should have a will that is consistent with his wishes prepared by legal counsel in order to attempt to prevent this result. One should be mindful that in New York State, a spouse cannot be disinherited under most circumstances. A spouse has the right to her “elective share”, which is that amount that would have been inherited in the event of intestacy. An exception to this concept is obtaining a proper waiver of elective share document, wherein the party waives her right to her elective share in the spouse’s will. This document may be appropriate even when a relationship has not dissolved. For instance, one spouse may be independently wealthy and be willing to waive her elective share so that the children of the deceased receive the bulk of the estate. The waiving spouse may also be duly provided for by other assets such as life insurance.

The Associated Press recently reported about a controversy concerning treasured possessions belonging to Dr. Martin Luther King Jr. Dr. King’s daughter Bernice King is currently in possession of his Nobel Peace Prize Medal and personal Bible. Her brothers, who control the Estate, have been attempting to seize these items, so that the Estate can allegedly sell them. There may be a written agreement to which Dr. King’s daughter may be subject where she previously agreed to deliver these items to those controlling the Estate. While most of us do not possess such historically important and valuable items, we should make provision for our “stuff” after our passing.

The legal term for “stuff” is personal property, which is not real property (land, house or condominium). Personal property can be as diverse as automobiles, jewelry, shares of stock in a cooperative corporation or a china collection. Some personal property can be highly valuable and unique, of sentimental value or of historical interest. Other items of personal property may be a nuisance because they are “junk”, difficult to dispose of and no one wants them.

If one dies intestate (without a Will) there will be an estate administration whereby an administrator is appointed by the Surrogate’s Court to distribute the personal property. In this case, the personal property will be distributed consistent with Estates Powers and Trusts Law Section 4-1.1. If one dies with a Will, the Surrogate’s Court in the probate proceeding will appoint an executor to dispense with the personal property consistent with the terms of the Will. As our readers can see, if one dies without a Will, the statute determines who is entitled to the personal property. If one has a Will drafted by experienced legal professionals , he can specify who should receive his personal possessions.