David L. Leon, PC Attorney (New York) » Probate

What is hospice care? Or comfort care?

admin — Sun, 29 Aug 2010 00:55:18 +0000

Hospice care refers to a change in the style of treatment of a disease. Typically, hospice care refers to medical treatment or therapy in light of the impending death of a patient. The goal of hospice is to help terminally ill patients with “comfort care.”

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

What is an escheat?

admin — Fri, 13 Aug 2010 03:43:38 +0000

An escheat occurs when a property’s ownership cannot be determined. An escheat vests title in the property with the state.

Section 200, NY Abandoned Property

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

What is the slayer’s rule?

admin — Thu, 15 Jul 2010 13:21:07 +0000

The slayer’s rule is a doctrine of law that prevents a murderer from benefitting from the murder. An example of this is New York’s EPT §4-1.6, which applies to joint tenant who murder one another. Here is a scenario:

Steve and Bill own a joint account at Milo Bank. Under normal circumstances, if Steve died first, then Bill would get the account. If Bill died first, then Steve would get the account. However, if Steve is convicted of murdering Bill, then the slayer’s rule would prevent Steve from collecting the joint account.

N.Y. EPT. LAW § 4-1.6 : NY Code – Section 4-1.6

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

A child died without a will. The parent had abandoned the child. Can that parent still inherit from the child?

admin — Thu, 15 Jul 2010 12:52:35 +0000

(a) No distributive share in the estate of a deceased child shall be
allowed to a parent if the parent, while such child is under the age of
twenty-one years:
(1) has failed or refused to provide for the child or has abandoned
such child, whether or not such child dies before having attained the
age of twenty-one years, unless the parental relationship and duties are
subsequently resumed and continue until the death of the child; or
(2) has been the subject of a proceeding pursuant to section three
hundred eighty-four-b of the social services law which:
(A) resulted in an order terminating parental rights, or
(B) resulted in an order suspending judgment, in which event the
surrogate’s court shall make a determination disqualifying the parent on
the grounds adjudicated by the family court, if the surrogate’s court
finds, by a preponderance of the evidence, that the parent, during the
period of suspension, failed to comply with the family court order to
restore the parent-child relationship.
(b) Subject to the provisions of subdivision eight of section two
hundred thirteen of the civil practice law and rules, the provisions of
subparagraph one of paragraph (a) of this section shall not apply to a
biological parent who places the child for adoption based upon:
(1) a fraudulent promise, not kept, to arrange for and complete the
adoption of such child, or
(2) other fraud or deceit by the person or agency where, before the
death of the child, the person or agency fails to arrange for the
adoptive placement or petition for the adoption of the child, and fails
to comply timely with conditions imposed by the court for the adoption
to proceed.
(c) In the event that a parent or spouse is disqualified from taking a
distributive share in the estate of a decedent under this section or
5-1.2, the estate of such decedent shall be distributed in accordance
with 4-1.1 as though such spouse or parent had predeceased the decedent.

N.Y. EPT. LAW § 4-1.4 : NY Code – Section 4-1.4:

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

What is “issue” as used in a will?

admin — Thu, 15 Jul 2010 04:49:35 +0000

(a) Unless a contrary intention is indicated:
(1) Issue are the descendants in any degree from a common ancestor.
(2) The terms “issue” and “descendants”, in subparagraph (1), include
adopted children.

N.Y. EPT. LAW § 1-2.10 : NY Code – Section 1-2.10: Issue

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

What is a fiduciary?

admin — Thu, 15 Jul 2010 04:47:30 +0000

A fiduciary is one who can act on behalf of another, typically as a personal representative. A fiduciary duty means that the person acting as a fiduciary must put the other person’s interests above his or her own.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

What is a codicil?

admin — Thu, 15 Jul 2010 04:40:56 +0000

A codicil is a change to an otherwise valid will. A codicil is a supplement to a will, either adding to, taking from or altering its provisions or confirming it in whole or in part by republication, but not totally revoking such will.

N.Y. EPT. LAW § 1-2.1 : NY Code – Section 1-2.1: Codicil

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

My child died in New York, without a will. The other parent abandoned the child, can the other parent still inherit?

admin — Mon, 31 May 2010 01:50:45 +0000

Possibly. New York Estate Powers and Trust law § 4-1.4 controls this situation. Under this statute, a parent can be disqualified from inheriting from a child if such parent “has failed or refused to provide for the child or has abandoned such child, whether or not such child dies before having attained the age of twenty-one years, unless the parental relationship and duties are subsequently resumed and continue until the death of the child…”

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

If someone dies in New York without a will, where does the property go?

admin — Mon, 03 May 2010 02:47:02 +0000

(a) If a decedent is survived by:
(1) A spouse and issue, fifty thousand dollars and one-half of the
residue to the spouse, and the balance thereof to the issue by
representation.
(2) A spouse and no issue, the whole to the spouse.
(3) Issue and no spouse, the whole to the issue, by representation.
(4) One or both parents, and no spouse and no issue, the whole to the
surviving parent or parents.
(5) Issue of parents, and no spouse, issue or parent, the whole to the
issue of the parents, by representation.
(6) One or more grandparents or the issue of grandparents (as
hereinafter defined), and no spouse, issue, parent or issue of parents,
one-half to the surviving paternal grandparent or grandparents, or if
neither of them survives the decedent, to their issue, by
representation, and the other one-half to the surviving maternal
grandparent or grandparents, or if neither of them survives the
decedent, to their issue, by representation; provided that if the
decedent was not survived by a grandparent or grandparents on one side
or by the issue of such grandparents, the whole to the surviving
grandparent or grandparents on the other side, or if neither of them
survives the decedent, to their issue, by representation, in the same
manner as the one-half. For the purposes of this subparagraph, issue of
grandparents shall not include issue more remote than grandchildren of
such grandparents.
(7) Great-grandchildren of grandparents, and no spouse, issue, parent,
issue of parents, grandparent, children of grandparents or grandchildren
of grandparents, one-half to the great-grandchildren of the paternal
grandparents, per capita, and the other one-half to the
great-grandchildren of the maternal grandparents, per capita; provided
that if the decedent was not survived by great-grandchildren of
grandparents on one side, the whole to the great-grandchildren of
grandparents on the other side, in the same manner as the one-half.
(b) For all purposes of this section, decedent’s relatives of the half
blood shall be treated as if they were relatives of the whole blood.
(c) Distributees of the decedent, conceived before his or her death
but born alive thereafter, take as if they were born in his or her
lifetime.
(d) The right of an adopted child to take a distributive share and the
right of succession to the estate of an adopted child continue as
provided in the domestic relations law.
(e) A distributive share passing to a surviving spouse under this
section is in lieu of any right of dower to which such spouse may be
entitled.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

I was left a property under a New York will. After the testator died, but before the property was given to me, it was destroyed. Who gets the insurance money?

admin — Mon, 03 May 2010 01:29:15 +0000

To the extent available, the insurance proceeds would be paid to the beneficiary whose gift was destroyed.

EPT §3-3.45 provides:

Where insurance proceeds from property which was the subject of a specific disposition are paid after the testator’s death, such proceeds, to the extent received by the personal representative, are payable by him to the beneficiary of such disposition; and such proceeds retain the character of a specific disposition for all other purposes, including 12-1.2 and 13-1.3.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

I was left a house under a New York will. Before the testator died, s/he became incompetent and a guardian took over. The guardian sold his house before he died. What happens now?

admin — Mon, 03 May 2010 01:26:56 +0000

Assuming that the testator was competent to make the will, and you can trace the proceeds from the sale of the house, then you would be entitled to the remaining proceeds.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

I want to leave my house to someone under the will, but there is a mortgage on it. Will the recipient have to pay the mortgage?

admin — Mon, 03 May 2010 01:11:55 +0000

In most cases, yes, the mortgage will follow the house. However, if the will specifically says that the house should be paid off before being transferred to the beneficiary, then the executor should use other estate assets to pay off the mortgage to the house.

EPT 3-3.6

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

I'm afraid of someone contesting a will after I write it. Can I cut someone out of a New York will if they contest it?

admin — Mon, 03 May 2010 01:08:47 +0000

Yes, this is called an “in terrorem” clause in a will. An in terrorem clause typically states that should a beneficiary contest the will, then the beneficiary’s gift under the will lapses. There are exceptions to the rule under EPT 3-3.5, such as probable claims that a will is a forgery, or that the will was revoked.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

What does "per stirpes" mean?

admin — Mon, 03 May 2010 01:04:53 +0000

Per stirpes means “by the stripes.” Typically, in an estate planning context, a per stirpes distribution means that if a testator gives a gift to a beneficiary, but the beneficiary dies before the testator, then the gift shall go to the heirs of the beneficiary.

An example:

Linus makes a will leaving property to 1/2 Charlie and 1/2 Sophia. Charlie has two children, Lola and Paloma. Sophia has no children. Charlie dies first, Linus second. Linus’s gift can’t go to Charlie, because he’s already deceased. Linus’s gift to Charlie would go to Charlie’s children (1/4 to Lola and 1/4 to Sophia) and the remaining half would go to Paloma.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

My family member left property to a sibling in a will written in New York. The sibling died before the testator. What happens to that sibling's share?

admin — Mon, 03 May 2010 00:55:09 +0000

This is a common problem. If an heir predeceases a testator, then the gift may lapse, in some instances. You would need to see the specific language of the will. If the will is silent, then rhis gets more complicated if the heir is a sibling to the testator, thanks to EPT (§3-3.3):

If the will was written BEFORE 9/1/92: Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, per stirpes.

If the will was written ON or AFTER 9/1/92: Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, by representation.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

What are the basics of a will in New York?

admin — Mon, 03 May 2010 00:50:17 +0000

A will is a legal document in which a person (called the testator) gives instructions to another person or entity (called an executor) to dispose of property (called the estate) by giving it to various people or entities (called beneficiaries) upon the death of the testator.

Upon the death of the testator, the executor will file the will with the court (called probate) and ask the judge for authority to carry out the wishes contained in the will.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.