LexisNexis® Legal Newsroom
Potential Pitfalls of Convenience Accounts

By Jennifer F. Hillman * Convenience accounts are frequently utilized to assist the elderly or infirm with their financial obligations. The account holder will add an additional person to the account which gives them the ability to write checks, pay bills and perform other banking functions for...

Modern Day Thorn Birds: Recent Case Concerns Proving Paternity of Non-Marital Children under the NY EPTL

A recent article in the New York Daily News entitled Man Claiming to Be Son of Dead Brooklyn Priest Loses Battle for Piece of His Estate provided a sensational headline for an interesting scenario involving paternity and inheritance under the New York Estate Powers and Trust Law (EPTL). In the Matter...

Dishonesty as a Grounds for Ineligibility as a Fiduciary

Pursuant to NY Surrogates Court Procedure Act (SCPA) 707 , letters may issue to a person authorized by law to be a fiduciary, except in the circumstances specifically enumerated in the statute. The allegation that a petitioner is "incompetent to execute the duties of his office by reason of...

NY EPTL 5-4.6 and Compromise Orders

Settlement of a wrongful death action can pose a challenge for the decedent's attorney. Wrongful death actions are usually a two-step process. First, the trial court handles the wrongful death action itself, and then the Surrogate's Court, which administers the decedent's estate, must deal...

The Often Misunderstood Rule Against Perpetuities

By Jennifer F. Hillman, Esq. The Rule Against Perpetuities is an often misunderstood rule which strikes panic in the hearts of many law students and practitioners alike. Simply put, the rule limits the ability of owners to control future dispositions of their property. Under NY EPTL 9-1.1(a...

Effective Transfers to a Trust

In New York, a lifetime trust shall be valid as to any assets that are effectively transferred to the trust. However, a transfer is not accomplished by a simple recital of assignment or a listing of an asset on Schedule A. Matter of Rothwell , 189 Misc. 2d 191, 730 N.Y.S.2d 664 (Sur. Ct. Dutchess...

New York Appellate Court Broadens the Powers of an Attorney-In-Fact

By: Jennifer F. Hillman, Esq. A recent decision out of the New York Appellate Division Second Department broadened the range of powers enumerated to an attorney-in-fact to include the ability to amend a previously executed irrevocable inter vivos trust. The facts in Perosi v. LiGreci , 948...

Attempted Disclosure of Confidential Financial Information

Many estate litigators are familiar with the fight for disclosure of personal income tax returns or financial documents. Perhaps you have represented the beneficiary who insists upon the disclosure of a trustee's personal income tax returns because they are certain some "funny business"...

To The Victor Goes The Spoils: A Review of the Pro Tanto Rule

What's fair is fair - or at least that's the concept behind the pro tanto rule wherein a surcharge against a fiduciary is limited to the interest of the objecting party and not the other beneficiaries who stood by and failed to act in their own interest. In the absence of an objection, the account...

Digging A Little Deeper: Less Obvious Attesting Witness-Beneficiaries Find Their Bequest Void Under NY EPTL 3-3.2

It is well-understood by estate practitioners that a beneficiary of an estate should not serve as an attesting witness to a will. If he does, he or she is a competent witness for purposes of probating the will, however, under EPTL 3-3.2 , the bequest under the will is void unless (i) two other persons...

Preventive Medicine for the Health of Your Estate

By Jennifer F. Hillman and Leora A. Ardizzone Physicians and other licensed health care providers labor many years to build their practices. However, unlike many other businesses a health care practice cannot be passed by will or otherwise to the provider's spouse or children, unless they too...

Potential Pitfalls of an Out of State Executor: Keep New York Estate Assets in New York

By Jennifer F. Hillman Pursuant to New York Surrogate Court Procedure Act ("SCPA") § 711, a fiduciary cannot remove property of an estate from New York without prior approval of the Court. A violation of this duty could lead to suspension, modification of letters testamentary or removal...

Attorney-Executor Beware: Strict Compliance With SCPA § 2307-a Is Needed For Full Commissions

By: Jennifer F. Hillman, Esq. When the nominated executor under a will is also the attorney-draftsman (or an employee of that attorney) additional disclosures are necessary to assure that the nominated executor will receive their full statutory commissions. Pursuant to New York Surrogate’s Court...

Must A Living Person Disclose Their Estate Plan: The Limits of NY CPLR § 4503

By Jennifer F. Hillman, Esq. Most communications between an attorney and client are privileged pursuant to New York Civil Procedure Act (“CPLR”) § 4503. There is, however, a carve-out in proceedings concerning the probate, validity or construction of a will. Pursuant to CPLR §...

Making Your Mark: Using a Fingerprint When a Testator Cannot Sign the Will

By Jennifer F. Hillman, Esq. We have all seen the movies where an illiterate individual signs an important document with an “X”. Even literate clients may have difficulty signing a document due to a severe physical impairment. Compliance with the requirements of New York Estate Powers...

Searching for Frank: What Is A Diligent Search For Heirs?

By Jennifer F. Hillman, Esq. | Finding the current whereabouts of long-lost beneficiaries or distributes may be one of the more difficult aspects of an estate proceeding. Aside from the jurisdictional requirements, what happens when a beneficiary or distributee has not been heard from for decades...

Jennifer F. Hillman: Inheritance Rights of Posthumously Conceived Children in New York State

By: Jennifer F. Hillman, Esq. Medical technology continues to advance at a rapid pace. Since the first “test tube” baby was born on July 25, 1978, the field of artificial reproduction has blossomed. According to the United Stated Department of Health and Human Services Office of Population...

Tangible Personal Property: What Does it Encompass?

By Jennifer F. Hillman The phrase “tangible personal property” is a term of art frequently utilized by estate practitioners when drafting documents. However, what is, and what is not tangible personal property is not always clear. A recent case, In re Rothschild , N.Y.L.J., October 28...