Law Office of Brendan P. Kearse
48 Wall Street
New York, NY 10005
Ph: (212) 425-6244
Estate Litigation Services:
Sometimes people disagree about something as basic as whether a deceased person had a Will or Trust, whether they had one but revoked it or subsequently signed a new Will or Trust, whether they signed the Will or Trust at a time they lacked capacity (due to illness, senility, etc.), or whether the true last Will or Trust were obtained by someone’s “undue influence” (i.e., improper pressure). A Will or Trust contest usually starts where somebody has a hunch that something smells fishy and wants to find out more. A more detailed discussion can be found here.
Elective Share Proceedings (Rights as a Surviving Spouse)
The surviving spouse of a decedent is usually entitled to an inheritance (unless waived in a prenuptial agreement, for example). If the surviving spouse did not receive an inheritance or the inheritance seems smaller than required by law (less than 1/3 of the estate approximately), the surviving spouse can demand their "elective share" from the decedent's estate. Surviving spouses also generally have a right to $25,0000 of their late spouse's cash, and their late spouse’s car, with certain limitations. A more detailed discussion can be found here.
A party with an interest in an estate or trust (e.g. a beneficiary) has the right to receive a detailed account of the fiduciary’s acts. The aim of an Accounting action is to obtain a complete overview of the Executor’s or Trustee’s acts, and based on that information to determine if the Executor or Trustee has acted appropriately. The account will include information such as: assets collected, expenses paid, how the assets were invested (if invested at all), gains and losses incurred, distributions made to beneficiaries and creditors, a calculation of the fiduciary’s commissions, income tax and estate tax payments, etc. If it is found that the fiduciary did not perform to the required standard and the estate was damaged because of it, the fiduciary may be held personally liable for the resulting loss. A more detailed discussion on accountings and contested accountings can be found here.
Breach of Fiduciary Duty and Fiduciary Removal
Fiduciaries (i.e. Executors, Administrators, Trustees, Guardians, and Attorney in Fact acting under a Power of Attorney) in New York have a duty to act with prudence, impartiality and loyalty toward the beneficiaries. Fiduciaries don't always live up to this standard. Sometimes they favor themselves instead of the beneficiaries or favor one beneficiary over the others. If this happens a beneficiary does not need to permit such overreaching by the fiduciary and may obtain relief through court proceedings, including possibly by having the Fiduciary removed. A more detailed discussion on accountings and contested accountings can be found here.
Discovery Proceedings (Locating Estate Assets)
The goals of a discovery proceeding are: (1) To determine whether assets of the estate or trust have been wrongfully diverted from it, for instance, through trust, deed or by a abusive power of attorney; and, (2) If assets have been wrongfully diverted, to have them returned. A more detailed discussion on accountings and contested accountings can be found here.