Bonnie Lawston-NY Probate Estate Attorney by cjleclaire
NY Probate Estate Attorney,Estates,Trusts Administration,Litigation
Apr 15, 2020 | 97728 views | 0 0 comments | 776 776 recommendations | email to a friend | print | permalink

view as list
Court Limits Scope of Release Involving Estate and Trust Accounting
by cjleclaire
Feb 08, 2018 | 44310 views | 0 0 comments | 1263 1263 recommendations | email to a friend | print | permalink

It’s pretty common procedure for a fiduciary to a trust to obtain a release, with the objective of waiving the fiduciary’s obligation to provide an accounting of the assets of the estate and trust. A recent opinion from the Surrogate Court in New York County casts some doubt on the potential validity of such releases.

In Matter of Ingraham, NYLJ, June 16, 2017, at p. 28 (Sur. Ct., New York County), the court considered the validity of a receipt and release and ruled that it did not absolve the trustee from the legal responsibility to provide an accounting. In Ingraham, a successor trustee had filed a petition with the Surrogate Court asking that the former trustees submit an accounting. One trustee complied with the request, but the other trustee objected, citing both the language of the trust document, which she argued relieved her from any obligation to provide an accounting; and releases that had been signed and executed by the trust’s grantor and by the other trustee.

According to evidence entered during the proceeding, the document signed by the grantor released the trustee from “any and all claims related in any way to her role as trustee,” other than claims arising as a result of fraud or willful misconduct. The document also included a provision waiving the right to a formal accounting of the trust. The other trustee had executed a similar release.

The court, however, found that that trustee could not use the release to avoid the duty to provide an accounting, citing two specific reasons:

  • The release specifically reserves the right to seek relief if there are allegations of willful misconduct or fraud
  • The duty to provide an accounting is a fundamental aspect of any fiduciary relation, an essential part of a trustee’s duty

The court also concluded that, even if the released waived the grantor’s right to an accounting, it was not legally binding on the other trustee, successor trustees and trust beneficiaries. Furthermore, the court rejected the argument that the trust document waived the requirement that trustees provide an accounting, concluding that the trust document only waived the obligation to provide periodic accountings, not the requirement that there be a final accounting.

When you’re involved in an estate or trust administration dispute, it’s essential that you have knowledgeable, skilled and experienced legal representation. Estate and Probate Attorney Bonnie Lawston has protected the rights of individuals in trust and estate matters on Long Island for more than 20 years.

Contact Probate and Estate Administration Attorney Bonnie Lawston for all your Probate and Estate Administration matters.

comments (0)
view/post comments
no comments yet

Keeping Your Ex Spouse from Being Administrator of Your Estate
by cjleclaire
Dec 19, 2017 | 36913 views | 0 0 comments | 859 859 recommendations | email to a friend | print | permalink

In most situations, the last person you would want to give the authority to administer your estate would be a former spouse. In fact, to avoid such a contingency, it’s a fairly common practice for parties to a divorce to include language in the divorce decree prohibiting either from acting as administrator of the other’s estate. A ruling from the Albany Surrogate’s Court, however, has demonstrated the importance of careful estate planning to ensure that such a result does not ensue. Here’s what happened.

In the Matter of Walsh, Jr., the deceased had a child who had priority to serve as the administrator of his estate, but the child was still a minor. Because the child could not serve as administrator, the court needed to appoint a fiduciary. The decedent’s ex-wife, mother to the child, successfully petitioned the court to be the legal guardian of the child. Once she became the legal guardian, she also had authority and became the administrator of the estate.

In response to the appointment of the ex-wife as administrator of the estate, the deceased’s brother filed a motion with the court to remove her, citing the divorce decree, which specifically stated that neither party would serve as executor or administrator of the other’s estate. The court, however, ruled against the brother, concluding that the ex-wife was not serving personally and individually as administrator, but rather as guardian of the minor child.

The upshot of the decision? You need to be very careful when you designate who will act as your administrator, and you are best served to identify specific successor administrators, in the event your primary choice is unwilling or unable to serve.

At the Law Office of Bonnie Lawston, we have extensive experience representing individuals facing similar concerns. We can provide a thorough analysis of your estate planning and implement measures to ensure that your wishes are honored.

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 855-479-4700to set up a free initial consultation.

comments (0)
view/post comments
no comments yet

What Happens If You Can’t Locate a Will?
by cjleclaire
Aug 16, 2017 | 37615 views | 1 1 comments | 805 805 recommendations | email to a friend | print | permalink

So you spend the time and money to carefully plan out your estate and you prepare and execute a will that ensures that your property goes exactly where you want it to. Once you’ve made it official, you put the original copy of your last will and testament with your other important papers, in a file cabinet in your home or study.

That could be a big mistake! In the state of New York, if the original copy of your last will and testament cannot be located after your death, there’s a high likelihood that it won’t be admitted during the probate proceedings, even if you can find a copy. That’s because, in New York, if a will was known to be in the decedent’s possession, but cannot be found, there’s a presumption that the will was revoked. That presumption can only be overcome by affirmatively showing that:

  • The will has not been revoked
  • The will was properly executed
  • The provisions of the will are clearly and distinctly proven by either two credible witnesses or by a copy of the will shown to be true and complete

As a practical matter, overcoming the presumption of revocation is extremely difficult, as it can be challenging to prove conclusively that the decedent did not revoke the will.

A 2015 decision by the Queens County Surrogate upheld this presumption. In Matter of Massimo, testimony indicated that the deceased was known to have an original copy of his last will and testament, as well as a codicil, in a Federal Express envelope in his sock drawer. At his death, however, family members could not find the original copies of either document, but were able to find photocopies. It was also proven that one family member, who had the motive and opportunity to destroy the original will, had entered the decedent’s residence.

The court, following established New York law, found a presumption that the will and codicil had been revoked. The court further concluded that, absent concrete evidence that a family  member had destroyed the original will, the presumption that the decedent had voluntarily revoked it could not be overcome.

This office has been successful under certain circumstances to probate a copy.  There is a series of steps or requirements that one must meet in order for the Court to accept a copy.   For example,  if the original Will was known by another disinterested person to be in the possession of the testator,  had seen it recently, discussed it with the Testator and the home where the Will was kept was destroyed by a storm or fire.  Under limited circumstances, a copy may be admitted to probate.

Our office can evaluate your case and determine if such a proceeding is appropriate or it an intestacy proceeding is necessary.   Should you have any questions, please contact our office to speak with an attorney or our staff.

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 855-479-4700to set up a free initial consultation.

comments (1)
view/post comments
tdi tuscan heights
August 17, 2017
TDI Tuscan Heights offer 2BHK & 3 BHK apartments at very affordable price. TDI Tuscan Heights project is located at Kundli, Sonipat

The Right to Discovery in Probate Litigation
by cjleclaire
Jan 20, 2017 | 40737 views | 0 0 comments | 1257 1257 recommendations | email to a friend | print | permalink
by Bonnie Lawston

When someone dies with a will in New York State, that person’s estate must generally be “settled” through filings and proceedings overseen by the probate court. Referred to as probate, this process can often be done without the need for litigation. However, when there are issues about which executors and heirs disagree, probate litigation may be the only way to resolve the dispute.

An essential part of the litigation process is what is known as “discovery.” The discovery phase of a trial is that period where all parties seek to obtain (and are usually required to share) all evidence related to the matters in dispute. Discovery can be accomplished in a variety of ways, through depositions, through the production of relevant documents, and through answers to written questions, known as interrogatories. A couple recent opinions handed down by the Surrogates courts have specifically addressed and clarified the rights of discovery in probate contests.

Matter of Shure

In an opinion handed down in early December, 2016, the Manhattan Surrogates Court confirmed that a third party had to disclose information to allow potential estate beneficiaries to determine whether an executor had breached a fiduciary duty. In Matter of Shure, a co-executor asked the Surrogate Court to compel Chase Bank to provide certain information that involved the estate, information that included reference to internal bank procedures. The co-executor cited SCPA (Surrogate’s Court Procedure Act)2103, which allows discovery of documents and testimony to confirm or deny the existence of assets or property that might belong to an estate. The court recognized Chase Bank’s need to maintain confidentiality of its internal policies, so allowed the co-executor access to the information, but required that the parties enter into a confidentiality agreement.

Estate of Melendez

In this opinion, released in November, an executor sought discovery of documents related to the deceased’s purported spouse, who had attempted to exercise a spousal right of election to the estate (see our blog on the right of spousal election in New York). The executor had alleged that the right of election could not be exercised because of the existence of a prenuptial agreement signed by the alleged spouse. The court held that discovery of passport and border crossing records was reasonable.

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.

comments (0)
view/post comments
no comments yet

Videotaping the Execution of a Will
by cjleclaire
Jan 13, 2017 | 37078 views | 0 0 comments | 1144 1144 recommendations | email to a friend | print | permalink
Author: Bonnie Lawston

It's not uncommon, in New York and other jurisdictions, for dispossessed or unhappy heirs to allege that a will was executed under duress or undue influence. What if you videotape the execution of the will, so that there's visual evidence to support the assertion that the decisions regarding disposition of property were entered into knowingly and voluntarily?

While a video recording of the actual event of executing a will can be introduced as evidence in proceedings to determine the validity of the will, it's important to start with the understanding that visual evidence is not totally objective of infallible. Consider that ten people can witness the same accident and have ten different descriptions of what happened. Nonetheless, if you are considering videotaping the execution of a will, here are some factors to consider.

The Videotape May Not Be Allowed as Evidence

The decision to allow the videotape into evidence is solely at the discretion of the court. The court may not consider it relevant to the matters being litigated. The court may conclude that the videotape provides no credible evidence of capacity or intent.

The Court Must Have Reason to Believe that the Tape is Authentic

You will probably need to bring witnesses into to court to testify that they were present when the video was taken. In legal terms, this is known as establishing a proper foundation for the evidence. The court must have some basis for believing that the tape is what it is alleged to be.

The Court Must Have Confidence that the Tape Has Not Been Altered

In addition, the court may have concerns about the "chain of custody" of the videotape. The court will want reasonable assurances that the video presented was actually taken at the time represented and that the videotape has not been altered or tampered with between the recording and its presentation as evidence. Accordingly, it may be necessary to document when and where the recording took place, where the videotape was secured immediately after the recording, who had access to the tape while it was secured, any movement of the tape (along with who moved it) and how it got to court.

Of course, there are no assurances that the video recording will have any impact on the outcome of the dispute. A judge or jury may watch the video and come away with a completely different perception of the events than intended.

Contact the New York 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.

comments (0)
view/post comments
no comments yet

Protecting Your Right as a Spouse in a New York Estate
by cjleclaire
Sep 08, 2016 | 55221 views | 0 0 comments | 4009 4009 recommendations | email to a friend | print | permalink

Author: Bonnie Lawston

A Spouse’s Right of Inheritance in New York

Under New York law, when a married person dies, the surviving spouse has a “right of election,” a statutory right to receive either $50,000 or 1/3rd of the estate, whichever is larger. However, as set forth in an opinion from the New York Appellate Division in 2010, that right can be jeopardized if there are concerns about the mental capacity of the decedent at the time of the marriage.

In Matter of Berk, 2010 NY Slip Op 02139 [71AD3d883], testimony indicated that the deceased, Irving Berk, had executed a will in 1982, naming his two sons and four grandchildren as sole beneficiaries. Some 15 years later, Judy Wang was hired as his permanent caretaker, as he was wheelchair bound and his memory was failing. Wang cared for him for the nearly a decade, as his physical and mental health declined. According to witnesses, by 2005 he had difficulty recognizing his sons when they came to visit. Nonetheless, Wang and Berk were married in June, 2005, in a civil service, when he was 99 and she was 47. Neither party wore a wedding ring and the marriage was not disclosed to Berk’s sons until the day before his funeral, in June, 2006. As Berk had not amended his will to include any provision for Wang, she filed a petition seeking to exercise her right to the statutory elective share as his legal spouse.

The trial court found that Wang had met the requirements of the statute by demonstrating that she was Berk’s surviving spouse at the time of his death. Because Wang had met the statutory test, the court determined that there were no facts that needed to be determined by a jury and issued a summary judgment ruling in Wang’s favor.

Berk’s sons appealed the summary judgment ruling, arguing that the marriage was a sham. Under the spousal election law, the election may be invalidated if the marriage was annulled. The sons argued that, because of undue influence and fraud, the marriage could not be legally binding. The appellate court overturned the summary judgment, finding that a jury could in fact determine whether Wang knew that Berk lacked the mental capacity to enter into a marriage and had deliberately taken unfair advantage of him by marrying him. The court also concluded that, should the jury find that Wang had wrongfully married Berk with the intention of securing a portion of his estate, the marriage could be ruled invalid and the spousal election could be denied.

The appellate court’s decision makes it clear that the spousal right of election may be at risk when the deceased has Alzheimers’ or some form of dementia. At the Law Office of Bonnie Lawston, we can protect your rights, whether you seek to exercise the right of election or want to prevent someone from wrongfully asserting a spousal right of election.

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. Call us at 631-425-7299 or 24/7 at 855-479-4700 to set up a free initial consultation.

comments (0)
view/post comments
no comments yet

Can You Be the Executor of an Estate in New York if You Don’t Live in the State?
by cjleclaire
Oct 31, 2014 | 49597 views | 0 0 comments | 1023 1023 recommendations | email to a friend | print | permalink
Posted on by BonnieLawston

If your loved one has died in New York, with a valid will, trust or estate plan there, but you live in another state, you may be uncertain if you can, or if you want to, serve as executor, administrator or trustee from another part of the country. To answer the first question, New York does allow a non-resident to serve as executor or administrator of an estate within the state.

However, just because the law allows you to serve as an executor does not mean that you must. You always have the right to decline to serve. However, just because you live in another part of the country does not mean that it must be difficult or complicated to serve as executor. In many instances, you can fulfill all your duties without ever having to travel to the state. Typically, you attorney can:

  • Take care of all paperwork necessary to get you appointed as executor
  • Appear on your behalf at all hearings or proceedings
  • Prepare and file all documents necessary to initiate and settle the estate
  • Prepare and file an accounting of all debts and assets of the estate
  • Secure valuations of property, when necessary
  • Notify all interested parties, including creditors and potential beneficiaries
  • Ensure that all final debts and obligations of the estate are satisfied
  • Verify that all necessary tax filings are completed
  • Oversee the orderly distribution of the assets of the estate in accordance with the terms of the will

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 C 855-479-4700 to set up a free initial consultation. We can be reached 24/7.

comments (0)
view/post comments
no comments yet

Does Your Loved One Need a Special Needs Trust?
by cjleclaire
Jun 26, 2013 | 35145 views | 1 1 comments | 1121 1121 recommendations | email to a friend | print | permalink

If a member of your family has special needs, it is important to you that he or she has financial security.  Let’s say for example, that your 19-year-old son, Johnny, suffered serious injuries in a car accident.  That the accident resulted in traumatic brain injury and left your child as a paraplegic.  Now you are faced with ongoing medical expenses, the need to retrofit your home to accommodate your child’s special needs and a myriad of other costs.

With the help and assistance of your NY estate attorney, a Special Needs Trust can be established for your loved one.  Johnny can continue to live at home with you as his primary caregivers.  You can be compensated by the trust to provide for his specialized needs and attention which is a 24/7 full-time job.

What is a Special Needs Trust?

Special needs trust are authorized by 42 U.S.C. sec. 1396p(d)(4)(A)  and are an estate planning tool that protects funds intended for your special needs loved one, while preserving eligibility for public benefits.  The assets of the trust can be used for essentials not covered through entitlement programs, such as private nurses, or therapists, or certain types of medical equipment.  The trustee is responsible for the management and distribution of the assets in the trust.

To be eligible for a Special Needs Trust:

•    You must be under the age of 65

•    The trust must be funded with the individual’s assets (such as a personal injury award)

•    You must be disabled

•    The trust must be “for the sole benefit of” the disabled individual

•    The trust must be created by a parent, grandparent, legal guardian or the Court

Why your loved one needs a Special Needs Trust

If your loved one is receiving public benefits such as, Social Security Supplemental Income, Medicaid, and Section 8 Housing, he or she will lose those benefits if a trust is not established.  In the example of Johnny, his personal injury award would have been quickly exhausted by paying bills that Medicaid otherwise would have paid.  So special care must be taken, to set aside funds and in setting up the trust.

Your loved one’s Special Needs Trust can be established using assets that already belong to him or her or may be contributed by a third party.  Inheritances, lawsuit settlements, or financial gifts are commonly used to fund the trust.

Need advice about a Special Needs Trust?  Talk to an NY estate attorney today!

Setting up a Special Needs Trust for your loved one requires a skilled and experienced estate attorney.  The NY Law Offices of Bonnie Lawston has helped many clients over the years set up trusts of all types, including Special Needs Trusts.  If you need help in setting up a trust for your special needs loved one, contact us online  or call 877-581-8498 for an appointment today.

comments (1)
view/post comments
Keith Caldwell
June 27, 2013
In a divorce situation, do you advise both parents to each set up a trust or would only one work?

NY Estate Probate Attorney talks about Breach of Fiduciary Duty
by cjleclaire
Jun 05, 2013 | 33850 views | 0 0 comments | 1113 1113 recommendations | email to a friend | print | permalink

If you are an executor of an estate or an administrator of a trust, you are considered a fiduciary.  In either position you are required by law to ethically fulfill your fiduciary duties which are:

  • Impartiality—not favoring one party over the other.
  • Undivided loyalty—not conflicting your own interests with the interests of the parties of the trust, will or estate.
  • To administer the trust, will or estate faithfully with care and good sense.

If you fail to carry out your fiduciary duties properly you could find yourself facing a lawsuit over breach of fiduciary duty.

You can be held personally liable for breach of fiduciary duty

Being an executor or administrator of a trust, will, or estate is a serious responsibility and failures to ethically carry out your duties can land you in hot water.  In the event of a breach you can be held personally liable to the damaged party and possibly charged criminally.  So it is vital to keep thorough records and document all income and expenses relative to the estate.

 Actions that could get you in trouble as a fiduciary include:

  • Investing estate funds in a venture in which you have a financial interest
  • Commingling your funds with the funds of the estate
  • Conflicts of interest
  • Making risky investments
  • Arbitrary decisions about distributions to beneficiaries or payments to creditors

Talk to an estate attorney about your fiduciary duties today

Properly navigating the duties of a fiduciary can be complex and confusing and often requires the help of an experienced Long Island estate attorney.  The Law Offices of Bonnie Lawston has successfully helped clients with breach of fiduciary claims such as:

mismanagement or misappropriation of assets

failure to account, fraud, conflicts of interest

failure to distribute assets

improper distribution of assets, and other claims.

If you have questions about how to fulfill your fiduciary duties contact our office online  or call (877) 581-8498 today.

comments (0)
view/post comments
no comments yet

by cjleclaire
Feb 01, 2013 | 35587 views | 0 0 comments | 662 662 recommendations | email to a friend | print | permalink

Author: Bonnie Lawston: Law office of Bonnie Lawston

Stephen Sternbach--Star Multi Care 

New York Estate Litigation Attorney handling clients throughout Queens County, Nassau County and Suffolk County NY.

Do you know what to do with a loved ones estate if they die?

Do you live out of state and your loved one passed away as a resident of Queens or  they own property in Queens or New York?

 Legal Help with Queens, NY Probate & Estate Administration—No Matter Where You Live

If the decedent died as a resident of the State of New York, living in Queens (their primary residence) or they have real property in the State of New York, we can assist you.  New York State law requires that when someone passes as a resident of New York, or has property in NY, an estate proceeding must be started to collect the assets and distribute them.

Representing Clients throughout Queens, NY

The Law Office of Bonnie Lawston represents clients throughout Queens County, including Astoria, Corona, Elmhurst, Glendale, Long Island City, Forest Hills, Woodside, Bayside, Douglas-ton, Flushing, Kew Gardens, Little Neck, Oakland Gardens, Utopia, Whitestone, Howard Beach, Richmond Hill, Woodhaven, Hollis, Jamaica, and Jamaica Estates, Rosedale, Springfield Gardens,

Breezy Point, Far Rockaways, Roxbury and Sea-side to name a few communities.

A Variety of Retainer Options Available

We have many types of retainers. Our popular retainer is the deferred payment retainer whereby the legal fee is paid from the estate and/or inheritance. No legal fee or legal retainer is due up front. Our legal service fee is paid upon collection of estate assets and prior or at the time of distribution. Subject to qualification, verification and other information.

Call the Law Offices of Bonnie Lawston toll free (855) 479-4700 | Local Calls (631) 425-7299.

If you are unable to handle your situation alone due to possible illness or inability to move around without assistance, we work with Star Multi Care to provide our clients with Home Health Care throughout Queens.

Home Health Services We Offer

Your personal care team of healthcare professionals and support staff collaborate to deliver a broad range of home care services that include:

Contact Star Multi Care

For compassionate home nursing care, therapy and home health aide services, call Star Multi Care Services at (877) 920-0600 or contact one of our branch administrators in your area to find out how we can make your life easier and help you worry less about the well-being of someone you love.




comments (0)
view/post comments
no comments yet

page 1 ..
.. 3