Law Offices of William Cafaro

Law office of Bonnie Lawston

Web Perseverance - Web Development, Internet Marketing, SEO, Graphic Design

Criminal Defense Lawyer NYC

Law office of Bonnie Lawston

Law Offices of William Cafaro

What Happens If a Beneficiary is also a Witness to a Will?

Author: Bonnie Lawston

Under New York law, a valid will must contain the signatures of two witnesses. There are no requirements regarding the capacity of the witnesses. The testator (person executing the will) must sign in the presence of the witnesses, but they need not sign in each other’s presence. There’s also nothing that prohibits you from having a family member as a witness to your will, but there can be consequences.

Under New York law, a witness who has also has an interest in the estate is known as an “interested witness.” The fact that the will was witnessed by an interested witness does not invalidate the will, but it will render any benefit to the interested witness in the will void. Accordingly, any conveyance of property to an interested witness under a will, even if it’s part of a residuary estate, will be ineffective and will be returned to the estate, to be divided among other beneficiaries.

What Happens If a Beneficiary is also a Witness to a Will?

The “interested witness” rule, however, can apply to more than just property received. Consider the facts in Matter of the Estate of Cynthia R. Wu. In that case, the deceased had a provision in her will that called for estate and inheritance taxes to be paid as debts of the estate, rather than by beneficiaries out of their pro rata share of the estate. The deceased’s brother, the named beneficiary of two life insurance policies owned by the decedent, had also been a witness to the decedent’s will. The court concluded that, because the brother was an interested witness, he was not entitled to the benefit of having the estate taxes paid out of the estate. Instead, the court ordered him to pay his pro rata share of the estate taxes out of the death benefit proceeds.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299 or 24/7 at 855-479-4700) to set up a free initial consultation.

Matter of Van Patten—Representation by Counsel

Author: Bonnie Lawston

If I am an executor, administrator or trustee, do I need an attorney and who pays for it? Why spend the money? 

The answer is that you should. Since the duties of a fiduciary involve actions that required legal counsel, any non-attorney executor (or fiduciary) who personally handle all estate matters (without retaining counsel) has engaged in the unlawful practice of law.

Matter of Van Patten—Representation by Counsel

One of the fundamental functions of a last will and testament is to name an executor, the person designated to oversee the orderly distribution of the assets of the estate. Though there are clearly situations where it’s essential for the executor to retain legal counsel to settle the estate in the probate court, there can also be situations where the executor might find it problematic or perhaps even unnecessary to hire a lawyer to probate a will. The estate may lack the resources to pay legal counsel. An important question, then, is whether an executor can handle all the duties required to probate an estate without hiring legal counsel.

Read More:
The executor in Van Patten challenged the ruling, arguing that she was the only beneficiary of the estate, so she was essentially the acting in her own interests. The court disagreed, finding that she had a responsibility to creditors of the estate as well. The court then ordered the executor to hire legal counsel or risk have the estate’s objections to the trust accounting dismissed.

Read More:

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at (631)425-7299 or 24/7 at (855)479-4700 to set up a free initial consultation.

An Executor’s Fiduciary Duty to Determine Fair Market Value of Property

Author: Bonnie Lawston

Under the estate laws in New York, a person named in a will as an executor has certain “fiduciary duties.” A fiduciary duty is essentially the requirement to act in the best interest of another party. The fiduciary duty owed by an executor is the duty to act in the best interests of the estate and all beneficiaries to the estate. The fiduciary duty imposed on an executor requires that the executor always put the interests of the estate above his or her own self interests.

In addition, though, an executor has a duty to find and manage the assets of the estate in the best interests of the estate and, ultimately, the beneficiaries. That typically includes taking “reasonable” steps to preserve or maximize the value of estate assets. A 2014 opinion in the Surrogate’s Court in Kings County addressed that specific issue.

In Matter of Mahler, 2009-1485/B, Richard Mahler was the named executor of the estate of Margaret Van Cortlandt Billmyer. Among the estate’s assets was real property, which Mahler contracted to sell to a personal acquaintance for the purchase price of $670,000. Three days after the closing on the sale of the property, the buyer, Basile, sold the property for $1.3 million.

Adelphi University, an heir to the estate, contested the accounting of the estate and the New York State Attorney General joined in the action, asking the court to find that Mahler had breached his duty to act in the best interests of the estate. The petitioners asked the court for $630,000 in damages—the difference between the sales price to Basile and Basile’s revenue three days later.

Fiduciary

In response to the legal action filed against him, Mahler contended that the property was run-down and needed extensive repairs. Adelphi and the Attorney General’s office alleged, however, that Mahler had failed to obtain any comps (prices for comparable properties in the area) and that he had taken no action to determine the actual fair market value of the real estate.

When questioned by the court, Mahler could provide no explanation for the difference in value over the three day period. The court concluded that the petitioners had met their burden to show that Mahler had breached his fiduciary duty to exercise diligence and care when selling the property. In its opinion, in fact, the court found Mahler “utterly devoid” or the required care to be exercised by a fiduciary. The court concluded that a $630,000 surcharge assessed against Mahler was appropriate.

The opinion rendered by the Surrogate’s Court demonstrates the importance of seeking experienced legal counsel when you’ve been named executor or administrator of an estate. At the Law Office of Bonnie Lawston, we offer comprehensive counsel to executors, administrators and personal representatives, helping you avoid any potential fiduciary challenges.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299 or 24/7 at 855-479-4700 to set up a free initial consultation.  Our attorneys and staff can enforce the applicable laws of New York State and require the executor, administrator or trustee to maximize your inheritance and protect your rights.   Call us for a free consultation and deferred legal fees.

What to Do When a Loved One Dies

Author: Bonnie Lawston

When a loved one dies, the emotions you experience can paralyze you, causing you to neglect to handle some of the most basic tasks. That can complicate matters significantly.

What to Do When a Loved One Dies

Here’s a checklist of the steps you need to take following the passing of a loved one:

  • Get a declaration of death—If you have hospice care, the hospice nurse should be able to officially declare the person to be deceased. They will often help you arrange the transportation of the body, too. If you don’t have hospice care and your loved one dies at home, you’ll have to call 911. You’ll want a “do not resuscitate” order, though, or EMTs will initiate emergency medical procedures and may even attempt to revive the person.
  • Contact the funeral home—Assuming that no autopsy is needed, the funeral home will arrange to pick up the body.
  • Make arrangements for a memorial service and burial or cremation—By law, the funeral home must advise you when you call them of any costs that will be incurred to pick up the body. In addition, before you are charged any additional fees (for cremation, burial or other services), the funeral home must advise you of all your options. If there was a prepaid burial plan, that can be honored. However, you cannot be held to any “plan” for burial entered into by the deceased that was not paid for.
  • Get multiple copies of the death certificate—You will need copies of the death certificate for many different purposes, from life insurance payouts to notifications to creditors. The funeral home will often arrange to get the certified copies for you, but may charge a fee to do so.
  • Contact a probate attorney—It’s never too early to contact a probate attorney. Though the primary purpose in hiring an estate lawyer is to ensure the orderly distribution of the estate, that attorney may also help you navigate any legal issues that arise with the funeral home, with creditors or others. Your attorney may also help you locate insurance policies or identify other sources for defraying the costs of cremation or burial.
  • Initiate the probate process—Your lawyer will help you do this. You’ll need to bring a copy of the will to the appropriate county/city office to have it accepted for probate, and you’ll need to have the executor appointed.
  • Notify all necessary parties—In addition to friends and family, you’ll also want to notify creditors, pension or retirement funds, Social Security and V.A. offices, investment advisors, accountants and life insurance providers.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online  or call us at 631-425-7299 or 24/7 at 855-479-4700 to set up a free initial consultation.