LexisNexis® Legal Newsroom
The New Uniform Probate Code | A Cape Cod Probate Attorney Assessment Pt 2

As we noted in our Part 1 assessment of the new Massachusetts Uniform Probate Code (a.k.a. "MAUPC"), the legislation has been delayed yet again by the Massachusetts Legislature, this time until April 1 of 2012. Still, there has been no shortage of talk relating to the expected effects...

Ancient Documents: Overcoming the Obstacles of Time

By Jennifer F. Hillman * As many estate attorneys can attest, probating an "older" will has additional challenges to overcome. In New York, courts generally require the testimony or an affidavit of one attesting witness prior to admitting a will to probate. This requirement is often...

New California Trust Case – The Probate Court Can Order An Accounting Sua Sponte – Christie v. Kimball

By David W. Tate Christie v. Kimball (California Court of Appeal, Second District, January 26, 2012) [ enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law ], holds that the probate court can order an accounting sua sponte (i.e., on its own...

Contesting a Transference to the Surrogate's Court

Transfer of Proceedings By Hon. C. Raymond Radigan, Ruskin Moscou Faltischek, P.C. The Supreme Court transferred a proceeding to the Surrogate's Court. A party claimed it never received notice of the motion to transfer the proceedings and sought to contest the transfer. The Surrogate held she...

Summary Judgment in Will Contests: Matter of Lubin

By: John G. Farinacci, Esq. , Ruskin Moscou Faltischek, P.C. , Uniondale, NY There has been an historical aversion to granting summary judgment in probate contests. However, during the last fifteen years or so, the courts have been trending away from the view that probate proceedings should...

Attempt to Avoid Probate Earns Medicaid Applicant Penalty Period

Often in an attempt to avoid a relatively small probate fee, individuals can create huge penalty periods and taxable issues for themselves. Take for instance, a woman in New York who, two years before applying for Medicaid, transferred money from her account to an account with a co-owner. Transferring...

Quicker Probate in Massachusetts? | Theory vs. Practice in the New MAUPC

By now Massachusetts estate planning and probate attorneys have had the chance to deal and work with the new Massachusetts Probate Code, first effective March 31, 2012. It has been said that no matter how long an attorney has practiced in Massachusetts probate law, all are now novices under the new code...

New Rules Can Save Money on Alabama Probate Expenses

The Alabama Supreme Court recently approved a set of rules to facilitate "limited scope" representation. Limited scope representation allows lawyers to assist clients with a specific part of a legal matter even if the client does not need (or cannot afford) representation in the rest of the...

Appellate Court Upholds Objections To Probate In Spite Of Waiver

The Supreme Court's Appellate Division recently upheld New York County Surrogate Nora Anderson's decision in the probate proceeding of Rosalin E. Melnick 942 N.Y.S.2D 45 (A.D. 1Dept 2012) [ enhanced version available to lexis.com subscribers ] which denied a petitioner's motion to dismiss...

Why Avoid Probate? | Cape Cod Probate & Estate Law

One of our first articles outlined the ways that our clients in Massachusetts and on Cape can avoid probate. In fact, avoiding probate is one of the most frequent goals we hear when first meeting with clients. But the information gap we encounter most seems to be that clients don't understand the...

Attorney Charged with Ethics Complaint over Probate Blog

Every now and then, blogging will get someone in "trouble." See e.g. Rakofsky v. Internet , in which one Joseph Rakofsky sued a whole bunch of bloggers and other media over their posts criticizing among other things, his competency and ethics. I put the words "trouble" in quotes,...

Deirdre Wheatley-Liss: 4 Good (?) Reasons to Contest a Will

Maybe it's the season, but I have gotten a lot of calls recently about will contests. A will contest usually happens when your heirs are surprised by what your will says, or by what you have left when you go to the great beyond. I have represented both heirs and estates, and in all cases there are...

Deirdre Wheatley-Liss: Love is Lost - And So is Your Inheritance - Divorce Really Ends Things

A common plan among our married clients is to leave their property to their spouse, either outright or in trust - oft-referred to as the "I Love You" Will. Sometimes, love is lost and the couple divorces. We recommend our clients update their Wills after any life-changing event, including...

Deirdre Wheatley-Liss: Personal Injury Damages and Medicaid Liens - SCOTUS Decides

You have a horrific accident and are looking at a life of extreme medical care. The accident was caused by another person (drunk truck driver). You get a multi-million dollar award. Does the state that you live in get a share? First, personal injury awards are generally free from income tax. Section...

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 §...

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: The Right Plan For Now: Living Trust

By Liza Weiman Hanks Dear Liza, I’m a young professional and would greatly appreciate your feedback on what type of trust, if any, would suit me well given my current financial and life position. I’m single, 29 years old (30 later this year), with cash, stocks, and a stake in a high-growth...

Ask Liza: Disinheriting a Child

By Liza Weiman Hanks Dear Liza: My husband and I both have a will that states we are each other’s beneficiaries and executor’s and our son as 100% beneficiary of both of us died,. My husband has a daughter by a previous marriage. If my husband dies before me does she have rights to our...

Ask Liza: Can the Executor Give Away Estate Assets?

Dear Liza: My husband is the sole executor (and only child) of his mother’s Will. There are no other beneficiaries listed in her Will. The only asset she had was a home which is valued at about $300,000. Does he need to probate her Will? As the executor can he sell the home to one of our children...

Ask Liza: What to Do When One Parent Lacks Capacity

Dear Liza, my parents do not have a living trust in place. I need to help them set one up. My father and mother are 91 and 83 respectively. My father has a form of dementia that prevents him from making decision about his property. My Mother is fully capable. Does my Mother have the right to make decisions...

Ask Liza: Reporting Foreign Gifts

Dear Liza: Does a person receiving a gift from a sibling in another country have to pay gift tax on that gift in the United States? In the United States, gifts are not considered ordinary income, so you don’t have to report them or pay income tax on the amount you’ve received. (If a US citizen...

Ask Liza: Who Inherits When There’s No Beneficiary?

Dear Liza: My dad named his mother as his beneficiary, but she passed away in 2004. My dad died in 2013 but didn’t change his beneficiary. I am my father’s only child and he has no wife, so who gets the money ? When a person dies and there’s no surviving beneficiary named for an account...

Ask Liza: When does a Will Make Sense?

Dear Liza: A friend of mine is considering a living trust. The only property he has is a coin collection maybe worth around $15,000. He has an adult daughter who he doesn’t communicate with and does not want her to get anything. He would like to leave the collection to me. Is a living trust a good...

The Gatekeeper Of Intentional Interference With Expectancy Of Inheritance: An ‘In Adequate Remedy In Probate’

By Shirley L. Kovar | In this Emerging Issues Analysis, Shirley L. Kovar, a partner in the Estate & Trust Litigation Practice and International Private Client groups at Henderson, Caverly, Pum & Charney, LLP in San Diego, identifies some of the ways IIEI differs from traditional inheritance...