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...

Ask Liza: My Aunt Just Died. Can I See the Will?

By Liza Weiman Hanks Dear Liza: My wife’s Aunt just died. We went to the funeral because they had been rather close and she wanted to represent her mother’s side of the family. While attending there was a passing reference to how she and some other members of her family were in the Will...

Estate Failed to Prove Museum’s Laches on Claim to a 3,000 Year Old Archeological Artifact Missing Since WWII

By John G. Farinacci, Esq. In a rather unique ceremony at the Nassau County Surrogate’s Court on December 4, 2013, Surrogate Edward W. McCarty, III ordered and presided over the physical return of an ancient Assyrian artifact from the possession of an executor of a decedent’s estate to...

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 §...

Bradley J. Frigon on the Applicability of Medicare Secondary Payment Subrogation Rights to Medicare Part C and Part D Private Carriers

By Bradley J. Frigon Following several cases that challenged federal regulations, CMS published a memorandum to all Medicare Advantage Organizations and Prescription Drug Plan Sponsors regarding Medicare Secondary Payment Subrogation Rights for Part C and Part D private carriers seeking reimbursement...

Landmark Jimmo v. Sebelius Settlement Helps Medicare Patients Receive Skilled Care

By Morris Klein CELA CAP | Settlement of a class-action suit filed against HHS makes it easier for patients to continue to receive skilled care services; the settlement removes clandestine policies requiring Medicare patients to exhibit improvement to continue receiving such services. Medicare will...

A Brave New World Awaits: The Elder and Special Needs Law Practice of the Future

By Thomas Caffrey and Mary WanderPolo, CELA, CAP | This Emerging Issues Analysis examines the elder & special needs law practice of the future amid evolving technological developments. While these developments may result in increased productivity, added security measures are needed for protection...

Dedon on Estate Planning: Ringing in the New Year With Good Estate Tax News

By John Dedon In the estate tax world, 2013 ended in stark contrast to the frantic planning during 2012. 2013 marked a return to fundamental estate planning; namely, using Wills, Revocable Trusts, Powers of Attorney and Medical Directives, to protect the family assets for a surviving spouse and children...

Updated Model Florida Durable Power of Attorney Forms

By Susan Calistri Boesger J.D. LL.M. This EIA provides two updated model Florida Durable Power of Attorney forms. One form provides estate planning provision and one does not. The EIA also provides some general information to consider when using the forms. Excerpt: Considerations In...

Ask Liza: Excluding Someone From Your Will

By Liza Weiman Hanks Dear Liza: I am helping my friend make a Will. It’s very simple, with one heir. She wants to make sure her brother, who is her only living relative and from who she has been estranged from since they left home (she’s 75 ) is not able to challenge the Will. She wants...

Ask Liza: Adding That New Baby

By Liza Weiman Hanks Dear Liza: My wife and I are the proud parents of two young boys. As a part of our estate planning we have created a Joint Living Trust and funded it with the title to our home, our life insurance policies as well as a few other things. We are now, however, expecting a third child...

Opening the Safe Deposit Box

By Peter K. Kelly Of Counsel, Ruskin Moscou Faltischek Often shortly after a decedent’s death, family members need to search the decedent’s safe deposit box for the original Will, a deed to a burial plot, a policy of life insurance or papers bearing upon his or her desire as to the...

John G. Farinacci: Abandonment Cases in Surrogate’s Court Present Difficult Factual Issues

By John G. Farinacci Naturally, abandonment and failure to meet support obligations are two grounds upon which an otherwise lawful heir can be disqualified from inheriting in New York as in most other jurisdictions. EPTL 5-1.2. Failure to support is generally easier to determine. However, with the...

John G. Farinacci: Rules Concerning Non-Party Subpoenas Finally Made Uniform

By John G. Farinacci, Esq. In New York Surrogate’s Court litigation, there are many unique discovery devices that would be foreign to an attorney that litigates primarily in State Supreme Court. An SCPA 2103 discovery proceeding is one example. However, the majority of discovery in Surrogate’s...

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...

The Cats Win, The Dogs Lose: Court Upholds the Validity of Pet Trust For Cats

By Peter K. Kelly | Leonore Abels in her Will provided that her residuary pass in trust for her husband Joel Abels and, in the alternative should he predecease her, all of her property be sold, except her house, and held by the trustee to maintain her home, to pay a salary and bonus to her housekeeper...

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...

John Dedon on Estate Planning – Staying Current

Attached below is a July 3, 2014 Forbes article detailing the need for clients to review and update their estate plans. Now that I have been in practice for 30 years, approximately 25 percent of the legal work that I do comes from existing clients updating their estate plans for various reasons. Why...

David Shulman on Estate Planning: Finding Your Digital Assets After Death

by David Shulman I’ve written before about estate planning for your digital assets and online accounts. Well this article isn’t necessarily about planning , but what happens after you die – especially if you don’t plan (or even if you do). I do both estate planning and probate...

Ask Liza: Estate Planning Beats Avoidance

By Liza Weiman Hanks | Dear Liza: We live in Nebraska. I own a ranch with my brother. Part of it we inherited and a small part we purchased from family members. The total value of the ranch is $2.7 million. We have a buy sell agreement between us. We have estate questions and aren’t sure where...

David Shulman: Gizmodo Gets Everything About the Fiduciary Access to Digital Assets Act Wrong

By David Shulman As I’ve written recently , the Uniform Law Commission approved the Uniform Fidicuary Access to Digital Assets Act. The act can be found on the Committee’s website , along with supplemental material, such as prior drafts, comments, and issues memorandum. A direct link to...

Ask Liza: Getting Good Advice When You Are The Beneficiary

By Liza Weiman Hanks Dear Liza: After dealing with an unexpected death of my spouse my head is still spinning.. My spouse was very private after a divorce and we kept our affairs separate. Now the Will, of which I was unaware, allows me to stay in our home and if I choose to leave or pass it goes...

Ask Liza: Naming a Minor as a Beneficiary of an IRA

By Liza Weiman Hanks | Dear Liza: I want to name my minor grandchildren as beneficiaries of my IRA account. How do I do that? Can I use my Will? It’s a smart idea to name minors as beneficiaries of your IRAs. Since they are young, they’ll be able to withdraw that money slowly over their...

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...