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

Read More

Issues Relating To Signing of A Will

In order for a Will or Codicil to be valid, the testator must sign the Will in the presence of two disinterested witnesses.

There are cases wherein New York courts have described the procedure that must be followed for the testator’s signature to be deemed admissible. It is not sufficient that the witnesses know the instrument is a Will. The actual signing of the document itself must have been visible to the witnesses.

“Where two attesting witnesses signed codicil prior to testator, and never saw testator’s signature on document, codicil was not duly executed.” In re Feldman, N.Y.L.J., Mar. 24, 1982, at 13 (Sur. Ct. Bronx County).

In the case of In re Stachiw, 906 N.Y.S.2d 776 (Sur. Ct. Dutchess County 2009), the Surrogate’s Court granted the objectant’s summary judgment motion to deny probate for lack of due execution because one of the witnesses, a hospital technician, was cleaning the decedent’s bathroom when he was asked to come into the room to sign a document. He had no idea what he was signing. In addition, testator’s testimony revealed that the testator neither signed in his presence nor acknowledged his signature to him. Stachiw shows that witnesses sound also be aware of what exactly they are signing onto.

Another question that courts have dealt with is what exactly constitutes as a signature? While the courts insist on strict compliance with the requirement that the testator subscribe his or her will, they are open to accepting a variety of marks as signatures.

In In re Kenneally, 139 Misc. 2d 198, (Sur. Ct. Nassau County 1988), the Surrogate’s Court accepted the words “Love Mother” as decedent’s valid signature for purposes of executing a codicil. The codicil was in the form of a letter. All the other requirements as to due execution were met, and the only question was whether the codicil was “signed”. The court, in accepting “Love Mother” as a valid signature, noted that a will can be signed with initials, the testator’s mark or any visible lines.

To conclude, it must be remembered that at a minimum, the testator should disclose to the attesting witnesses his or her intention to sign by a mark.

For any further information, please contact Jeffrey Weinstein Estates Attorney, on 212-693-3737.

Read More

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

Read More


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

Read More