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New York Estate Planning Questions & Answers
1 Answer | Asked in Estate Planning for New York on
Q: Disappearance of lawyer. Can we close estate without her? Or can we access the bulk of the funds?

My father’s estate (death 2016) did not close yet because we had to sell his house, which we could not do until one month ago. But now, the estate lawyer is unresponsive to us. We want to know if I write a letter as the other heir denying need for accounting requests, can my brother, the... Read more »

Michael David Siegel
Michael David Siegel answered on Jan 20, 2020

You can close the estate without a lawyer, but you should probably consult one to make sure everything was done legally, so there are no problems. If everyone is in agreement on everything, closing the estate is simple.

1 Answer | Asked in Estate Planning for New York on
Q: Will the court allow me to use money from my daughter’s inheritance money to purchase a house?

I’m the guardian for her account until she’s 18

Benjamin Z. Katz
Benjamin Z. Katz answered on Jan 16, 2020

You may need to explain how this is a benefit for her and why it is necessary. Courts will generally deny large withdrawals from accounts for minors unless it makes sense.

2 Answers | Asked in Estate Planning for New York on
Q: My brother passed away recently and I am not his executor.

My question is that recently I found out that he had a 401K and he did not have anyone listed as beneficiary since I am his only next of kin am I entitled to any of that 401K? I am sure that all his assets will go to probate and then a decision will be made. Thank you.

Michael David Siegel
Michael David Siegel answered on Jan 15, 2020

You need to file an administration proceeding. The amount of the 401k governs the type.

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2 Answers | Asked in Estate Planning for New York on
Q: When does a testamentary trust terminate?

A friend passed away leaving his house to his son in a testamentary trust. The Will reads: “The trust shall terminate upon my son attaining the age of 40”. His son is 52 so the Executrix/Trustee is transferring the property over to him. She refuses however to transfer the life insurance... Read more »

Michael David Siegel
Michael David Siegel answered on Jan 8, 2020

Based on your post, only the house is in trust. A designated beneficiary keeps the proceeds. If the designation is her alone and not her as trustee, she is doing the right thing.

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4 Answers | Asked in Estate Planning, Elder Law and Probate for New York on
Q: What can I do (or my Mom) to regain control over family’s estate, after my brother used my mom’s power of attorney to

change all legal documentation, making himself a sole owner of all the houses, trusts, insurance policies, LLC’s, etc. He stole over $15 mil while my mom is still alive.

Benjamin Z. Katz
Benjamin Z. Katz answered on Jan 6, 2020

Your mom can sue him for breach of fiduciary duty, self dealing and fraud and void the transactions. However, I would need to know more to properly advise you. In any case, you and your mom should speak with an attorney.

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2 Answers | Asked in Estate Planning and Probate for New York on
Q: Cousin borrowed money from father now father passed away she now says she doesn't have to pay me back because he died.

I'm the executor of his will

John Anthony Pappalardo
John Anthony Pappalardo answered on Jan 6, 2020

You need an attorney who practices in Surrogate Court

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2 Answers | Asked in Estate Planning and Probate for New York on
Q: My mother gave a Power of Attorney, effective immediately, to my only brother. My brother is a sole owner of my family’s

Multimillion estate. My mother and I are left with nothing. Please advise.

Thank you!

Benjamin Z. Katz
Benjamin Z. Katz answered on Jan 5, 2020

It is not clear what you are asking.

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1 Answer | Asked in Estate Planning and Probate for New York on
Q: My mother acted fraudulently, breached the trust and I lost funds which should be pass to me under my father’s will.

My father’s estate is very large. How can I recover the funds given to me by my father?

Benjamin Z. Katz
Benjamin Z. Katz answered on Dec 16, 2019

If you believe your mother breached her fiduciary duty, you can challenge her actions and seek to recover any losses.

2 Answers | Asked in Estate Planning and Probate for New York on
Q: I’m being alienated from any knowledge of my mother’s will and trust by my family even though I am an heir.

Denied copies of any papers. And never notified about anything. What can I do in this situation?

Lawrence Allen Weinreich
Lawrence Allen Weinreich answered on Dec 8, 2019

You can always get copies of any papers filed in court. You should also speak to an attorney about a will contest based upon what you are saying.

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2 Answers | Asked in Estate Planning for New York on
Q: I am contesting my dads will and have to file an objection i do not have an attorney and am not sure how to proceed
Benjamin Z. Katz
Benjamin Z. Katz answered on Dec 4, 2019

All objections must be in writing or the Surrogates Court won’t consider them. You should consult with an attorney to determine what arguments to make.

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2 Answers | Asked in Contracts and Estate Planning for New York on
Q: When somebody dies unexpectedly and they have two powers of attorney are they responsible for disbursement of money

And a New York State is it true that somebody that has a felony cannot be the Executor of his estate

Benjamin Z. Katz
Benjamin Z. Katz answered on Nov 20, 2019

A Power of Attorney is not effective once the person dies. If there was a Will, once the Surrogate's court determines it is valid, Letters Testamentary will be issued to the Executor/Executrix. If there was no Will, Letters of Administration will be issued to the Administrator/Administratrix.... Read more »

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1 Answer | Asked in Estate Planning and Civil Litigation for New York on
Q: Can an appointed trustee destroy the trust property given to him? If given promissory note, is he liable for face value?

A trust was created for my benefit earlier this summer. A promissory note was given in trust to the trustees to be invested and utilized for specific purposes. The note transferred to the trustees is still currently in their possession. They have not performed the trust nor accounted as required... Read more »

Nina Whitehurst
Nina Whitehurst answered on Nov 15, 2019

A trustee has the duty to protect, collect and maximize the value of trust assets for the benefit of the beneficiaries, and intentionally destroying a trust asset would presumptively be a violation of that duty. However, it is possible that the note truly was uncollectible and it would cost the... Read more »

1 Answer | Asked in Estate Planning and Probate for New York on
Q: Am I legally allowed to be the administrator or a co-admin of my grandfather's estate while his son (my uncle) is alive?

My estranged uncle is petitioning to become the administrators of, first, his mother's estate (my step-grandmother), and then, second, his father's estate (my biological grandfather), essentially double dipping. My uncle had two sisters (my mother and aunt, both deceased). My mother had two... Read more »

Michael David Siegel
Michael David Siegel answered on Nov 13, 2019

You can object. As next of kin, he has priority, but the court can refuse him.

1 Answer | Asked in Estate Planning and Probate for New York on
Q: Do I have legal grounds to be the administrator/representative or a co-admin/co-rep of my grandfather's estate and why?

My grandfather died in 1994. He had three children (two daughters with his first wife, my grandmother, and one son with his second wife, my step-grandmother). Both wives have died. Both daughters have died. My mother had two children (both alive). My aunt had three children (two alive). My... Read more »

Nina Whitehurst
Nina Whitehurst answered on Nov 13, 2019

It does appear that you might be an intestate heir because your mother (grandfather's daughter) has died. Therefore, you have an interest in the estate. Therefore, you have standing to petition to be appointed personal representative of your grandfather's estate. Do not delay. If your uncle has... Read more »

3 Answers | Asked in Estate Planning for New York on
Q: Can I refuse to be a co-executor of my brother’s will before he dies or do I have to wait for the ultimate event?

My older brother has named our younger sister and me as co-executors; my sister and I do not speak and do not get along. I want to avoid the aggravation involved in this. I have asked him repeatedly to name either her or me (I don’t care which one), but I know he will never do this. Is there... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on Nov 10, 2019

If you told him that you don’t want to serve with your sister, that is all you can do at this point. If he dies before you and your sister, you can decline to serve. If your sister passes before him you can choose to serve.

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1 Answer | Asked in Estate Planning for New York on
Q: Hello,I live in New York and need a power of attorney document drawn up for someone to manage some benefits in Trinidad

Is this something that can be done?

Michael David Siegel
Michael David Siegel answered on Nov 4, 2019

Each jurisdiction has their own forms. While Trinidad may enforce a New York form, you would be better if the work is in Trinidad to use a Trinidad form.

2 Answers | Asked in Estate Planning and Tax Law for New York on
Q: Does beneficiary pay tax on distributed rental income which the estate previously claimed as income on its tax returns?

Estate earned rental income in 2018, which was claimed as rental income on its 2018 tax returns. Such monies in 2018 were not distributed at that time to beneficiary. In 2019, same money was now distributed to beneficiary. Does beneficiary now need to claim such monies as distributable taxable... Read more »

Nina Whitehurst
Nina Whitehurst answered on Oct 29, 2019

That is a very good question, but no, the income does not get taxed twice. It only gets taxed once at the estate level.

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1 Answer | Asked in Estate Planning for New York on
Q: I was asked to sign a document stating that my niece is the only daughter of my brother and that there are no other

persons who can claim they get a portion of her father's estate. Years ago, my brother said he wanted to leave me some money but I don't know if he did it. My sister hasn't been asked to sign anything. My niece hasn't mentioned anything about my being in the will. Is this type of document... Read more »

Michael David Siegel
Michael David Siegel answered on Oct 28, 2019

All next of kin must be notified, whether in the will or not. This is normal to preclude you from claiming there is some other next of kin. But, you should be getting a copy of the will before you sign anything.

2 Answers | Asked in Estate Planning for New York on
Q: I am a missionary in the Philippines. My father died in 2011 and my brother took care of everything. I was not told if

Your first box only has one line-...there was a will or not. Then my brother died in 2016. I just found out through New York State that my father is owed money from a bank acct. The man could not tell me how much but did say it was more that $1,000.

It seems I need uthorization from the... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on Oct 25, 2019

Do you know if your brother brought an estate proceeding for your father? If not, you would need to petition the court for the power to discover and secure assets including the bank account. If you do it yourself it would only cost a few hundred dollars. If you hire an attorney it could cost about... Read more »

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2 Answers | Asked in Estate Planning and Probate for New York on
Q: Did my grandmother commit a breach of fiduciary responsibility?

My grandparents had mirrored wills and trusts. My grandfather passed several years ago, and my grandmother was the trustee and executor of my grandfather's estate. They had both signed a Joint Waiver of Agreement, a legally binding document whereby they relinquished the right to contest the... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on Oct 24, 2019

She may have breached her duty. However, that determination would have to be made after reviewing the trust agreement.

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