If You’re Living Separately, Get A Divorce

In this blog, we discuss the difficulties that may arise for children in inheritance matters when their mother has been estranged from her husband and does not get a divorce. We take the example of a couple, that was living separately without getting a divorce. They had been living separately and apart for the last 30 years, having no contact with each other whatsoever.

Upon the death of the wife, the husband stands entitled to claim a 50% share in her estate. The reason? They were not legally divorced. This raises an interesting question for inheritance law: Is it right, when parties have been living separately and apart for many years, for the husband to legally claim a share of his estranged wife’s estate, even though he was absent from the decedent’s life for years?

The time period apart is of no legal consequence. However, if the children can prove that the husband abandoned his wife, he may be barred from claiming a share of the estate. The relevant rule states as under:

EPTL 5-1.2.5:  Disqualification as Surviving Spouse.

A person maybe disqualified from claiming a share in his/her spouse’s estate if he/she abandoned their spouse.

The test to determine what constitutes abandonment is provided in the 1941 New York Surrogate’s Court case, In re Barc’s Estate 177 Misc. 578., which states:

“In order to attain a determination that a surviving spouse has abandoned her spouse, under EPTL 5.1.2, those contending for such a result must demonstrate, first, that departure from the other spouse actually occurred; second, that it was without the consent of the one left behind; and, third, that it was “unjustified,” in other words, that it did not occur in consequence of the fault of the person abandoned.”

Establishing abandonment may be difficult to prove without adequate documentary evidence.

So to conclude, please remember three important suggestions:

  1. If you are not living together with your husband/wife anymore, break up, complete the process and obtain a legal divorce.
  2. If your spouse has abandoned you, consult your lawyer to seek an assessment of your documents.
  3. If a parent wants to leave his/her inheritance to the children, then he/she should create a Will, otherwise insurmountable delay will accrue in the probate process, all to the discomfort of the children.

For any assistance in this regard, please contact Jeffrey Weinstein Estates Attorney, on 212-693-3737

Water Damaged Will

In the case Estate of Torleiv Larsen, 2016 NYLJ (Richmond County Surrogate Court) Alexander James Larsen, decedent’s grandson and sole distributee, sought to admit a document purporting to be decedent’s will. The document had sustained water damage and the signatures of decedent and attesting witnesses were wiped away.

The question before the court was whether an original will, not having the decedent and attesting witnesses’ signatures- which were wiped of as a result of water damage- could be admitted to probate. It answered in the affirmative.

The will had been placed in decedent’s home safe in the basement, which was flooded in January 2016. The decedent believed the safe was waterproof and did not check the safe’s contents until his grandson opened it to get the will, after the decedent’s death.

Even though the signatures were wiped from the original will, a conformed copy of the will, in the drafting attorney’s possession, was submitted to the court along with the original. The copy included the signatures of decedent and attesting witnesses, who provided an after death affidavit of attesting witness.

Article 14 of the Surrogate’s Court Procedure Act (SCPA) provides the conditions for a destroyed will to be admissible to probate:

  •  1407. Proof of lost or destroyed will.

A lost or destroyed will may be admitted to probate only if,

  1. It is established that the will has not been revoked, and
  2. Execution of the will is proved in the manner required for the probate of an existing will, and
  3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.

In a 1950 NY Surrogate Court’s case, In re Christensen’s Will, 197 Misc 152, a damaged will was upheld because “the testatrix never intended to destroy her will and that the testimony of the subscribing witness, together with the correct copy of the said will, justify the admission to probate of the questioned document as the last will and testament of the decedent.”

A copy of a will was upheld by a Louisiana Court when it was determined that the original will was destroyed by Hurricane Katrina, and the decedent did not intend to have it revoked.  In re Succession of Dalier, 19 So. 3d 8 (La App 4 Cir 2009).

In Larsen, the Court found that the three prongs of SCPA 1407 were proven and facts clearly indicated that decedent never intended to revoke his will, as he placed the will in what he believed was a waterproof safe in his basement. The Court stated it was satisfied with the validity of the document offered for probate, and admitted the damaged will to probate.

For any assistance in this regard, please contact Jeffrey Weinstein Wills & Trusts Attorney, on 212-693-3737

What Happens When You Challenge a Claim Against an Estate?

Each year, it is increasingly common to see claims filed against an estate. This is because many people write their wills and trusts without a knowledgeable estate planning attorney present to help. It may also be due to increasing financial struggles and changing family dynamics. If someone is making a claim against an estate that isn’t valid, it’s important that you challenge the claim in a court of law.

Will concept

Know Your Rights: There are a lot of New York estate planning laws, and it’s important to get a solid understanding about whether your challenge has validity. Whenever you want to challenge a claim against an estate, the first thing you should do is talk to a probate attorney. Getting a thorough understanding of your rights will equip you with the knowledge you need to successfully submit your challenge.
Reasons to Challenge a Claim Against an Estate: When someone passes away, many people will emerge who feel entitled to more money than they’re left. This may include friends, family members, or anyone claiming to be owed debt by the deceased. If someone is submitting a claim against an estate and you don’t think they have a right to the assets they’re claiming, it’s important that you submit a legal challenge in a timely manner.
The Probate Process: Anyone filing a claim against an estate must submit formal information in writing to the court. They are required to prove the validity of their claim amount in full, and they must also prove that any assets held by the state are not sufficient to pay the debt. If you don’t feel that these requirements have been satisfied, you will work with a probate attorney to submit a challenge.

If you think a friend, family member, or creditor has filed an unfair claim against an estate, contact a New York estate planning lawyer right away. These cases require expert knowledge and extensive experience. To get the legal assistance you need to win your challenge, call the lawyers at the Law Offices of Jeffrey Weinstein for a free consultation at 212-693-3737

THOMPSON CASE

On 9th October 2016, District Attorney of Brooklyn Ken Thompson lost his fight with cancer, leaving behind his mother, wife Lu-Shawn and two children.

According to an article in the New York Post on January 11, 2017, Thompson’s mother has claimed that her deceased son’s wife destroyed his first Will- in which he had conveyed certain portion of his estate to his mother, and convinced him to draft a new one, wherein he left his estate to his wife and two children, while leaving nothing to his mother.

His mother now wants the Surrogate’s Court to reinstate her son’s first Will. To that end, she raised three main grounds to challenge the validity of the later Will.

First, she claimed abandonment of the marriage by her daughter-in-law because Lu-Shawn did not care for her husband, during his final days battling with cancer; The article states that Thompson’s mother herself took care of him, out of her own expenses. His mother also claimed that he was estranged, and he was contemplating getting a divorce. The legal standard to establish abandonment is a high bar.

The test to determine what constitutes abandonment is provided in the 1941 New York Surrogate’s Court case, In re Barc’s Estate 177 Misc. 578. It states:

“In order to attain a determination that a surviving spouse has abandoned her spouse, under EPTL 5.1.2, those contending for such a result must demonstrate, first, that departure from the other spouse actually occurred; second, that it was without the consent of the one left behind; and, third, that it was “unjustified,” in other words, that it did not occur in consequence of the fault of the person abandoned.”

Second, the Post article stated that Thompson’s mother believed he had revised his Will under Undue Influence by his wife. This is a very tough point to prove without independent documentary evidence, because under the Dead Man’s Statute, any communication between the deceased and his mother is barred from admission into evidence. The reasoning is that since one of the parties to that particular communication has died, there is no way to verify or corroborate what the opposite party is alleging.

Third, she asserts that her son, at the time of revising his Will, lacked the legal capacity to do so. By capacity, she means that he was not in the proper mental state to execute a new Will. This contention is again awfully tough to prove. The presumption is that when the Will was made in the presence of an attorney and two witnesses, the decedent did in fact have capacity at the time. The determination of legal capacity may depend on the decedent’s medical records.

Should his mother be successful in getting the new Will deemed inadmissible by the court, then, it is possible she still cannot claim her right to inherit, because the court may conclude that the decedent died intestate.

Here is the link to the Article on which this is blog is based:

http://nypost.com/2017/01/11/ken-thompsons-widow-mother-at-war-over-his-estate/  

For any assistance on Will or Probate issues, please contact Jeffrey Weinstein Estates Attorney, on 212-693-3737

Dead man can’t convince judge he’s alive

This one is a bit old, but it came across our digital transom and we thought it was interesting enough to blog about.

Ohioan Donald E. Miller Jr wanted to get a new driver’s license and re-activate his Social Security number, but there was one minor issue that prevented him from doing it. He was legally dead.

Miller appeared in Hancock County Probate  Court in October 2013 to try to convince judge Allan H. Davis, who ruled him legally dead in 1994. In a 30-minute hearing the judge, quoted by the New York Times said, “I don’t know where that leaves you, but you’re still deceased as far as the law is concerned.” The judge explained that according to Ohio law, a death declaration can’t be reversed after 3 years.

Miller disappeared in the late 1980s leaving without paying thousands of dollars of child support. His ex-wife, Robin Miller, requested the declaration so she could qualify for Social Security benefits for their two daughters.

His ex-wife’s lawyer opposed Miller being declared alive due to the fact that his client might have to pay back the social security payments made to her and her daughter.

She first learned her ex-husband wasn’t dead when he showed up sitting at a picnic table with his girlfriend in front of her home

For any assistance on Probate or Bankruptcy matters, please contact Jeffrey Weinstein Attorney, on 212-693-3737

WHEN AN EXECUTOR FAILS TO PERFORM

An executor, appointed by the testator in his/her will has a fiduciary duty
to the heirs of the estate. What can you do when the executor breaches his/her duty?

What are the executor’s obligations?

1. Filing a Probate Petition in Surrogate’s Court.
2. Notifying all heirs and distributes of the filing.
3. Locate all missing heirs if any.
4. Obtain Letters Testamentary.
5. Searching and Locating Estate assets.
6. Preparing an accounting of assets and
distributing the accounting to all heirs.
7. Filing tax returns and paying all taxes and debts of the Estate.
8. Making a distribution of assets in accordance with the will
in a timely manner.

What procedures are available to an heir if the executor fails to perform?

An heir may file a Petition to compel the executor to act. If the executor does not act within the allotted time frame, 30-60 days, typically the heir may make a motion to remove the executor. If granted, the court will appoint the named successor executor. If the will does not provide for a successor, the court may appoint a family member or a Public Administrator to take over the duties to complete the probate and distribute the assets.

You do have remedies if your executor fails to perform his/her fiduciary duties.

For more information call or email me at 212-693-3737 or j.weinstein@jlwlawoffices.com

SECOND MORTGAGES MAY NO LONGER BE DISCHARGEABLE IN BANKRUPTCY

The US Supreme Court has recently ruled that Second Mortgages and Home Equity Lines of Credit may not be dischargeable in bankruptcy even if the entire amount of the loan is underwater.

By underwater we mean that the value (FMV) of the home is less than the amount of the first mortgage.

Until this recent court ruling, the second mortgage could be “stripped out” and converted from a secured debt to an unsecured debt under Chapter 13 rules. Stripping out a debt means that a debtor could “wipe out” that loan in bankruptcy and enable the debtor to avoid having to pay it back.

This is a big victory for banks and a major defeat to the homeowner in bankruptcy. As a result of this ruling, any homeowner seeking to hold on to his/her home, he/she will have to pay back both the first and second mortgages, without regard to how much the total debt is in excess of the property value.

This ruling is not only devastating to individual homeowners, it may cause disastrous results in regions such as central Florida where 23 % of the state’s underwater homes have second mortgages.

We will likely see more foreclosures and more Chapter 7 filings,  causing many homeowners to lose their homes. The Supreme Court decision leaves the homeowner no other option but to walk away from their property. This ruling may help the big banks, but it will really hurt the individual homeowner who is certainly not “too big to fail.”

For any assistance in this regard, please contact Jeffrey Weinstein Estates Attorney, on 212-693-3737

10 Smart and Easy Ways to Save Money

Everybody loves to save money. This is especially true if saving is easy.
Here are 10 simple tips to save without giving up your comfortable lifestyle.

1. Better Budgeting. If you track your day to day spending, you will be
surprised to discover how easy it will be to control your spending. There are
two FREE online tools to help you: MINT and LEVEL MONEY.
Use these apps to track your spending, and I will bet you will have more money
in the bank at the end of the month.

2. Use GASBUDDY, the mobile app that will point you to the cheapest gas in town.

3. Avoid impulse buying at the supermarket. Make a shopping list before you go
to the store and stick to it.

4. Shop for clothes in January. Post holiday sales offer the best bargains of the year.

5. Go for cash back credit cards, rather than for credit cards that reward you with
points. Card companies frequently raise the number of points needed to redeem gifts and
airline tickets. Cash holds its value and can be redeemed at any time.

6. Lower your energy costs. The federal “Low Income Home Energy Assistance Program”
(LIHEAP) helps both renters and homeowners get financial assistance to cut heating/cooling
costs. Call them today.

7. Never buy a Flash Drive or Thumb Drive again. DROPBOX is free and can give you online
storage to save and share files.

8. Free Shopping apps help you save money shopping online: SHOPSTYLE and APPCRAWLR are great
web sites and they are easy to use.

9. Clean or replaced you A/C filter at least once a month. You will save 10 percent or more
on your energy costs by making your A/C more efficient.

10. Don’t buy pet toys. Your dog will either chew them up in seconds or ignore them within
minutes. Dogs or cats would rather have an article of old clothing or a shoe with your smells
on them than apiece of chewable plastic.

YOU CAN INHERIT AIRLINE MILES!

When preparing a Last Will, anyone with a frequent flyer air miles
account should include those miles as an asset that can be transferred
upon death. As air fares continue to rise, your air miles account is a
valuable asset not to be overlooked.

Some airlines rules state that their miles are not transferable upon death.
However, those policies are flexible and a persistent executor can usually
be successful. United Airlines says that they decide these matters
“on a case by case basis”. Delta says their agents have flexibility.

Reward miles from American Express are definitely transferable, so long
as the account remains open. Same rules apply to hotel points.

Thus, when you meet with your lawyer to prepare your Last Will,
remember to prepare a list of all your assets including any frequent
flier miles and rewards program points. They add up. If you forget
to list them, chances are your executor will not be aware of this asset
and they will be lost forever.
For more information, please call me at 212 693-3737

FIVE MOST FREQUENTLY ASKED QUESTIONS

After many years as a probate lawyer, here are some of the most frequently asked questions:

1. Can a copy of a WILL be probated?

Generally, only the original WILL may be probated. However, if it can be proven that
the original WILL was never revoked and was destroyed AFTER the death of the decedent,
only then could the copy be admitted to probate.

2. Where do you PROBATE an estate?

The estate must be PROBATED in the state and county of the domicile of the decedent.
The domicile is the permanent legal resident of the decedent. If the decedent died
while traveling or temporarily staying in a hospital or nursing home, you must still
probate the estate back in the legal residence.

3. Do children have an automatic right to inherit?

No. A decedent can legally disinherit a child in his/her WILL. Only a spouse has a
statutory right to 1/3 of the decedent’s estate. However, if the decedent dies without
a WILL, children collectively will be entitled to a share of the estate. The child’s
share depends on whether the decedent was survived by a spouse and the number of
children of the decedent.

4. Who can challenge a WILL?

Any interested party may challenge a WILL. An interested party is anyone who would have
inherited if the WILL in question did not exist or was defective . Challengers include
all distributees and anyone named in a prior WILL. Distributees may be spouses,
children, siblings and possibly grandchildren.

5. When does it make sense to create a TRUST?

There are so many practical reasons to create a TRUST. The most popular reason is when
one has property in more than one state. This TRUST would avoid ancillary probate.
A TRUST is critical when one has minor children. There are also obvious tax benefits
for creating a TRUST.

For most information regarding these five questions and any other questions you may have, Please contact me at my office at (212) 693-3737.
Jeffrey Weinstein