Law Office of Jason D Jones, P.C.

Estate Litigation & Taxation

Estate Litigation

When parties are unable to settle estate matters, it might be necessary to litigate, either to force a adversary to the settlement table or for a Court to review. Litigation matters in the Surrogate’s Court generally pertain to fights over money, fiduciary commissions or removals, spousal rights of election or inheritance amounts. The most common types of estate litigation proceedings are Will Contests and Turnover Proceedings.

Estate taxation takes place at death and is based on one’s domicile. There are two levels of estate tax, one at the federal level and one at the state level. It is important to coordinate an estate tax plan that minimizes taxes at both levels.

Estate Litigation

On which grounds may I contest the validity of a Will in New York?

  • One may contest the validity of a Will in New York if its maker was incompetent when he executed it, if he was unduly influenced by someone who would stand to benefit financially, or if the Will itself was improperly drafted or executed or was forged.

What is a Will Contest?

  • A Will contest occurs when a party with standing, or a legal right to object to the Will being admitted to probate, begins the formal process of questioning its validity by filing Objections. A Will is not valid until the Surrogate deems it to be so and if a Will contest succeeds, the entire Will is thrown out, not merely the contested portions.

How does a Will Contest work?

  • If you have standing to object to the Probate of a Will, you must file formal objections with the Surrogate’s Court to commence a Will Contest. Prior to doing so, the Surrogate’s Court permits Examinations Before Trial, or 1404 depositions. The potential Objectant is permitted, for one time only, to depose the Will’s attesting witnesses, the drafting attorney (but not the mere scrivener), the Petitioner in the probate petition and the executor. The purpose for 1404 depositions is to gain information related to how the Will was prepared. Based on what these depositions uncover, an potential Objectant may or may not file Objections with the Surrogate’s Court.

Why would I want to proceed with the limited discovery available via 1404 depositions over just filing Objections?

  • Filing Objections is risky because if they succeed, the entire Will is thrown out and as a result you might end up forfeiting your entire inheritance. If Objections fail, then the Will is admitted to probate and you are either stuck with its terms or, depending on the existence of an in terrorem clause, discussed below, you will receive no inheritance. The Surrogate’s Court’s main duty is to uphold the testamentary wishes of the Will maker and it will scrutinize argument made by any party that seeks to undermine or supplant those testamentary wishes.

What is an in terrorem clause?

  • An in terrorem clause is placed within a Will to deter beneficiaries from undermining the Will maker's intentions. An in terrorem clause, if upheld, prohibits a beneficiary who contests probate of a Will from collecting his or her bequest under the Will. Such clauses can prohibit a particular beneficiary or his or her entire line from receiving an inheritance, depending on how they are drafted. These clauses are strictly construed by Surrogate's Court. Although the law remains unsettled on the validity of in terrorem clauses in trusts, due to the growing popularity revocable trusts/ pour over Wills in New York, many New York practitioners think that in terrorem clauses will also be upheld for revocable trusts /pour over Wills.

What additional discovery is permitted prior to a decision to file Objections and what are the limitations on its scope?

  • A potential Objectant may examine prior Wills, powers of attorney and medical records of the decedent made during the “3-2 period” which is three years before the Will maker executed his or her Will and the earlier of two years thereafter or the death of the Will maker. This is a technical rule that the Court has imposed to prevent fishing expeditions on discovery proceedings. For the Court to allow discovery outside of the 3-2 period, there must be a showing of “special circumstances” that pertain to the Will maker’s state of mind circa when he or she executed his or her Will.

What can I do if someone refuses to submit a Will to the Surrogate's Court?

  • If someone refuses to submit a Will to the Surrogate’s Court, you may file a Petition to Compel Production of a Will. This proceeding is limited to the submission of the Will only, not to its contents or who should receive what under it.

When is it proper to remove a fiduciary, such as an executor or trustee, in New York?

  • A fiduciary removal proceeding is appropriate if the fiduciary is violating a court order, financially mismanaging trust funds, making problematic investment decisions, using the trust for personal profit, engaging in substance abuse, suffering from a want of understanding, or is continuously hostile and uncooperative in working with others.

When is a Will Construction proceeding appropriate? 

  • A Will construction proceeding is only appropriate after the Will has been admitted to probate and there is ambiguity in interpreting one or more of its terms.

What is undue influence?

  • Undue influence is defined as strong moral coercion that completely that destroys a Will maker's inability to act independently. It is one of the primary reasons why the Surrogate might object to the probate of a Will. Undue influence most commonly occurs when the Will maker is beholden to someone like a trusted family member, a clergyman or a home caregiver for his or her care. Physical force, flattery, threats, appeals and plays on emotions on the Will maker also considered but only if they result in the overcoming of the Will maker's free will.

What is a wrongful death proceeding and how does it differ from a survival action?

  • A wrongful death proceeding is commenced by a distributee to recoup financial loss resulting from the death of the decedent. It is different from a survival action, also called a conscious pain and suffering action, that passes to the decedent's estate. In practice, however, the estate fiduciary will combine all issues in one petition.

Estate Taxation

What is federal estate tax exemption for 2019?

  • The federal estate tax exemption for 2019 is [ ].

What is state estate tax exemption for 2019?

  • The New York estate tax exemption for 2019 is [ ]

What is the foreign earned income exclusion?

  • For tax year 2019, the foreign earned income exclusion amount is is $105,900, up from $103,900 for tax year 2018. This represents the amount that one may earn outside the US without paying income tax but there is still a duty to disclose this income to the IRS.

What is the annual gift tax exclusion for 2019?

What is portability?

What is the New York State “Cliff”?

What is portability?

How are non-US Citizen spouses treated?

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