Letters of Administration — Trusts and Estates Update

November 01, 2002

Before the Court was a contested proceeding between the decedent’s son, on the one hand, and four of his siblings on the other, for letters of administration. A building was the only asset of the estate. On August 25, 1997, the Supreme Court issued an order which incorporated a stipulation that the building’s title was to be transferred to the decedent as life tenant, with a remainder to his former wife and two of their eight children as joint tenants with rights of survivorship. Additionally, the stipulation required that the mortgage on the property was to be transferred to the decedent’s former wife and two children. The petitioner for letters was one of the two children referred to in the stipulation.

On the date of the decedent’s death, neither the transfer of the property nor the transfer of the mortgage had taken place. The petitioner for letters sought his appointment in order to enforce the terms of the stipulation. The cross-petitioners sought letters to conduct discovery as to whether there were any defenses to the enforceability of the agreement.

In determining the issue as to whom letters of administration should issue, the Court referred to the universal rule that administration should be given to those who are eventually entitled to the property. The Court noted that the petitioner would receive an interest in the principal asset of the estate whether or not the asset was part of the estate. That is, petitioner would receive 1/3 of the property if the agreement was upheld, and a one-eighth interest if it were not. On the other hand, the cross-petitioners would receive a one-eighth interest in the estate only if they were successful in their attempt to declare the agreement non-enforceable. Accordingly, the Court granted restricted letters of administration to the petitioner.

In re Estate of Hirallall, New York Law Journal, September 26, 2002, p.25 (Surrogate’s Court, Kings County, Surr. Feinberg)

Totten Trusts
In a contested accounting proceeding, the petitioner moved for summary judgment dismissing the objections. The objectants took issue with the validity of certain totten trust accounts established by the decedent for the benefit of the petitioner.

In determining the motion, the Court referred to the provisions of EPTL Sec. 7-5.2(1) which provides that a trust can be revoked, terminated or modified by a depositor during his lifetime by withdrawing the funds from the account or by executing a writing which names the beneficiary and the financial institution. The Court concluded that the executrix met her burden of substantiating the accounts in issue as valid totten trust accounts by submitting the passbooks and the bank documents. The Court held that the objectants failed to demonstrate any triable issue of fact with regard to the establishment of the accounts as totten trust accounts, or that the executrix, as the decedent’s attorney in fact, had abused her authority by making gifts to herself of the funds in issue. Further, the Court determined that there was no evidence that the accounts in issue were convenience accounts, or that any attempted revocation was in compliance with the statute.

Accoe petitioner’s motion for summary judgment was granted. In re Estate of Osiurak, New York Law Journal, September 27, 2002, p. 23 (Surrogate’s Court, Westchester County, Surr. Scarpino)

Paternity
In a contested probate proceeding, the issue before the Court was whether an alleged non-marital daughter of the decedent had standing to file objections. The decedent was survived by an adopted daughter and an alleged non-marital daughter. His purported will nominated his adopted daughter as the executor of the estate and the sole beneficiary. The alleged non-marital daughter attempted to file objections to probate, and a paternity hearing was held in order to establish whether she had standing to do so.

At the hearing, the decedent’s twin brother offered to make himself available for DNA identification on the respondent’s behalf. Although the Court could find no instance in which DNA testing was done on an identical twin to establish the paternity of the decedent, the Court nevertheless granted the request, finding that the requirements of EPTL 4-1.2 (a)(2)(C) had not otherwise been met. The results of this test indicated that if the brothers were identical twins, and the mother of the child admitted to relations with the decedent, rather than his twin brother, than the decedent could not be excluded as the biological father of the child, and the probability of paternity was 99.96%.

In response to these results, both sides conceded that the brothers were identical twins, and the uncontroverted testimony of the child’s mother established that she had sexual relations exclusively with the decedent during the critical time period. Accordingly, the Court held that the requirements of EPTL 4-1.2 (a)(2)(C) and (D) were satisfied, and that the non-marital child was a distributee of the decedent with standing to file objections to the propounded will.

In re Estate of Nasert, New York Law Journal, October 1, 2002, p. 23 (Surrogate’s Court, Richmond County, Surr. Fusco)

Construction Proceeding
In a miscellaneous proceeding, the petitioners sought a construction of the decedent’s will in order to find that trusts were created thereunder for the benefit of the residuary legatees, one of whom was an infant. Upon review of the instrument, the Court denied the petitioners request. The Court determined that the language of the paragraphs in issue was sufficiently clear to give their plain meaning effect, to wit, that the fiduciary had the power and the discretion under the will to retain the residuary legatees’ share until they reach the age of 25, or alternatively, to pay the legatees share to the legatee upon his/her attaining majority in the state of his/her domicile, or to pay the legatees’ funds to the guardian of the legatees’ property. Nowhere from the plain language of the will could the Court construe that the decedent intended to create a trust for the residuary legatees’ benefit. In re Estate of Timmons, New York Law Journal, October 10, 2002, p. 22 (Surrogate’s Court, Kings County, Surr. Feinberg)

Editor’s Note: The author is counsel to the firm of Farrell Fritz, P.C., where she concentrates in the field of trusts and estates. In addition, she is a member of the Board of Directors of the Suffolk County Bar Association, and an Officer of the Suffolk Academy of Law. She serves as an adjunct professor of law at Touro College, Jacob D. Fuchsberg Law Center, Huntington, New York, where she teaches Trusts and Estates and Trusts and Estates Administration.

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