New York Legal Guides
90 guides covering New York topics, each with CaseDiver search beside the article.
- 5 Takeaways From New York’s Power of Attorney Law Effective June 2021
A new, more simplified, power of attorney law is coming to New York effective June 13, 2021. The new New York power of attorney law reforms the statutory short form and other powers of attorney for purposes of financial and estate planning.…
- Access to Decedent’s Digital Assets In New York
A number of states, including New York, have adopted the Revised Uniform Fiduciary Access to Digital Assets Act. In New York, this act was made state law through Article 13-A of the Estates Powers and Trusts Law. Under the Administration of…
- Ancillary Probate in New York
The jurisdiction of the Surrogate's Court for an ancillary probate is based on the decedent having property in New York, or a cause of action for wrongful death against a New York domiciliary. Venue for Ancillary Probate in New York Venue f…
- Are Handwritten Wills Legal In New York?
Yes, handwritten wills (also known as holographic wills) are valid and legal in New York, but only under very limited circumstances. A will is holographic “when it is written entirely in the handwriting of the testator, and is not executed …
- Assets Acquired By Estate After a Decedent’s Death Must Pass Under New York’s Intestacy Laws
In Matter of Keough , a June 17, 2021 opinion from the New York Appellate Division, Fourth Department, the Court considered whether assets acquired by a testator’s estate after the death of the testator should be distributed pursuant to the…
- Broad Discovery Triggers In Terrorem Clause In New York Trust Proceeding
In the Matter of the Neva M. Strom Irrevocable Trust III , a March 3, 2022 opinion, the New York appeals court strictly construed an in terrorem clause in a trust to determine that broad discovery resulted in forfeiture of a beneficiary’s i…
- Can A Beneficiary Witness A Will In New York?
Yes, BUT any bequest to a beneficiary who witnessed a New York will is void. However, if there are a sufficient number of witnesses to make the will otherwise valid, the bequest is not void. Who Needs To Witness A Will in New York? The requ…
- Can A New York Executor Waive A Decedent's Attorney-Client Privilege?
Yes, a New York executor of an estate has the authority to waive a Decedent's attorney client privilege. What Is New York’s Attorney Client Privilege? New York’s attorney-client privilege can be found at CPLR §4503(a) , which protects a “co…
- Can a RICO Claim be Brought Against an Executor of an Estate?
The Racketeer Influence and Corrupt Organizations Act ("RICO") can be used as a civil remedy in instances of a pattern of significant criminal activity. RICO provides for treble damages. But can a RICO claim be brought against the executor …
- Can I Leave Assets To My Pet In New York?
New York pet owners and animal lovers frequently ask: Can I leave assets to my pet so that my pet can be taken care of after I pass away? The answer is no, you cannot leave assets to your pet. But, you can definitely provide for your pet’s …
- Can the Deadline To File For Elective Share In New York Be Extended?
Yes, the deadline for a New York surviving spouse to take an elective share can be extended. When Does an Election To Take Elective Share Need To Be Made In New York? An election to take elective share must be made by a New York surviving s…
- Can You Compel Production of A Will In New York?
Interested parties can compel the production of a decedent’s will under New York law. This is sometimes necessary when you have only a copy of the will, but the drafting attorney or named executor refuses to give you any information or take…
- Can You Revoke A Renunciation Of An Intestate Share Of A New York Estate?
No, you cannot revoke a renunciation that has been filed in a New York probate estate under New York EPTL 2-1.11. In Matter of Zelouf , the Supreme Court of the State of New York Appellate Division, Second Judicial Department, upheld the su…
- Can You Serve a Lawsuit By Facebook?
In the modern age, where communication can be done by way of text, tweet, email, or swipe, the ancient requirement to hand-serve a summons and complaint on a defendant seems quite anachronistic. Courts and legislatures have been moving over…
- Castle Doctrine in New York: Deadly Force Against Intruders
New York castle doctrine: when occupants may use deadly force against home intruders, key statutes (N.Y. Penal Law § 35.15), presumptions, and leading cases.
- Children Born After The Execution Of A Will In New York
Children that are born after a will is created, and that are not addressed in the will, are referred to as pretermitted children. New York law provides that pretermitted after-born children can still inherit from their deceased parent’s est…
- Common Terms in New York Probate
Terms of art can make a New York probate confusing to navigate for the layperson who has never gone through the probate process before. New York’s Estate, Powers & Trusts Law (EPTL) defines numerous terms used in administration of New Y…
- Conflicting Evidence Of Due Execution and Undue Influence In New York Will Contest
The Surrogate’s Court, Queens County, in the July 20, 2021 opinion of Matter of Sook Li , denied summary disposition in a New York will contest on the issues of due execution and undue influence because of conflicting evidence, and ordered …
- Cooperative Apartments In New York Probate
Cooperative apartments in New York are common. What happens when an owner of a cooperative apartment dies? This article examines some of the basics of cooperative apartments and what can happen in New York probate upon the death of an owner…
- Coronavirus and Remote Notarization in New York
UPDATED July 2020: On July 6, 2020, Governor Cuomo signed Executive Order 202.48 . This executive order extends the remote procedures permitted to execute estate planning documents under the prior executive order discussed below. Unless fur…
- Deadlines And Timelines In New York Probate
What Are The Deadlines And Timelines In New York Probate? Important deadlines and timelines in New York probate include: Elective share election: within 6 months from the date of issuance of letters Objections to probate of an alleged will:…
- Deadline To File Surviving Spouse Election Tolled Under New York Covid-19 Executive Order
In Matter of Powell , an August 6, 2021 opinion, the New York Surrogate’s Court addressed whether the deadline for a surviving spouse to file an election for elective share in New York could be extended considering the executive orders issu…
- Divorce And The New York Estate Plan
If you go through a divorce in New York, the Estates, Powers, and Trusts Law 5-1.4 has an automatic revocatory effect on provisions for the benefit of your former spouse in your will, beneficiary designations and other estate plan documents…
- Does A New York Fiduciary Need A Lawyer?
A New York fiduciary does not need a lawyer and is permitted to represent himself or herself in court if representing his or her own interests and not the interests of others. This rule protects beneficiaries and also protects a New York fi…
- Drafting Attorney's Computer Inspected for Evidence in Will Contest
A Surrogate’s Court in Erie County, New York, ordered the drafting attorney of a will to turn over his computer for inspection during discovery in a will contest . In the Matter of Nunz , 53 Misc. 3d 483 , the Surrogate's Court ruled that a…
- Estate Dispute Over Calder Sculpture
Alexander Calder was a famous American sculptor, known for creating innovative mobiles (kinetic sculptures powered by motors or air currents). One of his most famous works is Floating Clouds (sometimes called Flying Saucers by the artist), …
- Financial Dishonesty As Grounds to Disqualify A New York Fiduciary
What happens if someone with a known history of dishonesty petitions for appointment as a fiduciary executor or estate administrator in a New York probate matter? Interested persons in the estate are permitted to object to the appointment o…
- First Will Admitted To Probate Under New York Remote Witness and Notarization Law
In response to Covid-19 many states, including New York, implemented temporary orders authorizing remote witnessing and notarization of wills. In January 2021, in Matter of Ryan , a Will was admitted to probate in New York under the remote …
- Forced Heirship in New York
Forced heirship refers to rights under testamentary laws which limit the discretion of a decedent to distribute assets under testamentary document upon death. Forced heirship laws are most prevalent in civil law jurisdictions and in countri…
- Foreign Wills In New York Probate
A foreign will is a will that is executed in another state or another country. A foreign will can be admitted to probate in New York. The will must be executed either in conformance with New York requirements for valid wills (governed by EP…
- How Does a Will Proponent Make a Prima Facie Case For Probate In New York?
In Matter of Schmidt , a May 2021 opinion, the New York Supreme Court, Appellate Division, reviewed the basic prima facie burdens of a will proponent in a contested New York probate proceeding. The Facts of Matter of Schmidt John G. Schmidt…
- How Do You Revoke A Will In New York?
A will is an ambulatory document, meaning that it can be changed at any time prior to a testator’s death. If you no longer want your will to be in effect, you must revoke your will, and New York law provides three ways to accomplish revocat…
- How Long Does Probate Take In New York?
How long does probate take in New York? Generally about a year. Although the time for how long a New York probate will take can be shorter or longer depending on the particular circumstances of the case, generally you should be prepared for…
- How Much Does An Executor Get Paid In New York?
The executor of a New York estate is not expected to administer the estate for free. Instead, a New York executor is entitled to get paid a commission based on the size of the estate. New York SCPA 2307 provides that the executor of an esta…
- How to Construe an Ambiguous Will in New York
What happens when a will bequeaths the same property to different people in two different clauses in a will, rendering the will ambiguous? A February 2020 case from New York explains what to do in order to construe an ambiguous will. In Mat…
- How to Contest a Will in New York
You can contest a will in a New York probate proceeding on a number of grounds: Lack of Proper Formalities/Undue Execution. A will can be contested in New York if the will was not properly executed. Proper execution of a will requires that …
- How to Defeat a Will Contest In New York With Summary Judgment
In New York, it is totally possible to defeat a will contest with summary judgment (we've written about it before here ). The ability to win a case through summary judgment is enormously important - because the moving party, if successful, …
- How To Make A Creditor Claim Against The Estate Of A Decedent In New York
If a New York resident owed you money, and then died, you are considered a creditor of the estate and will need to file a claim in the estate to pursue the money you are owed. Some examples of common creditor claims in New York include pers…
- How To Probate A New York City Taxi And Limousine Commission Medallion
What is a New York City Taxicab Medallion? The New York City taxicab industry was historically highly regulated - the most important regulation being a restriction on the number of taxicabs allowed to operate in the city. In order to legall…
- How To Substitute a Party After Death In New York
In Dugger v. Conrad , the New York Supreme Court, Appellate Division, First Department reversed a decision dismissing a complaint for failure to substitute a party after death, on the law and as a matter of discretion in the interest of jus…
- Inheritance Rights of Adopted Children in New York
Adopted children in New York have the same inheritance rights as biological children. Adopted children inherit from and through the adoptive parents. The adoptive parents and the adopted child have the legal relation of parent and child, an…
- Is a Probate Advance Legal in New York?
New York law contemplates transfers involving beneficiaries’ interests (see EPTL § 12-2.5) but Surrogate’s Court procedure still dominates administration. Separate private advances from SCPA fiduciary advance payments.
- Jurisdiction of the New York Surrogate's Court
New York's Surrogate's Court is not a court of general jurisdiction. In contrast, many states only have trial courts of general jurisdiction which have subject matter jurisdiction over anything a court in the state could hear. In these stat…
- Lease Does Not Sever Joint Tenancy With Right Of Survivorship Under New York Law
In Harmon v. Misholy , an April 8, 2022 opinion, the court analyzed whether a lease executed by one owner severs a joint tenancy with right of survivorship and if the lease survives the death of the lessor co-owner under New York law. The F…
- Ministerial Act Exception Used To Deny Surviving Spouse Status In New York County Surrogate’s Court
In Matter of Rosa , a July 21, 2022 opinion from New York County Surrogate’s Court, the court relied on the well-established ministerial act exception to determine the rights of the parties as if a divorce judgment had been entered before t…
- New York 2020 Case Roundup
Estate Dispute Over Calder Sculpture : A probate dispute involving an art gallery and an estate beneficiary over a sculpture created by the famous American sculptor, Alexander Calder. Matter of Ash : Extrinsic evidence is used to construe a…
- New York Child Support Guidelines: How Support Is Calculated
How New York calculates child support under N.Y. Dom. Rel. Law § 240(1-b); Fam. Ct. Act § 413, including the income shares (cssa percentage of combined income), deviations, modification, and leading cases.
- New York Court Conducts In Depth Analysis Of Lack of Testamentary Capacity Will Contest
In Matter of Falkowsky , a contested probate proceeding, the New York Supreme Court, Appellate Division, Second Department, affirmed a decree made after a nonjury trial which in effect granted objections alleging lack of testamentary capaci…
- New York Court Declares Marriage To Incapacitated Spouse Void Ab Initio
In Matter of Nunziata , a December 15, 2021 opinion from the New York Supreme Court, Nassau County, the court vacated a power of attorney and declared a marriage void ab initio with respect to an incapacitated woman taken advantage of by a …
- New York Court: No Confidential Relationship Leads To Reversal of Undue Influence Finding
One of the basics of an undue influence challenge to a New York will or trust is establishing the existence of a confidential relationship. Once a confidential relationship is established, an inference of undue influence arises. We have dis…
- New York Court: No Prima Facie Entitlement to Admit Copy of Lost Will To Probate
In Matter of Giacobbe , the New York Supreme Court, Appellate Division, Second Department, affirmed an order denying cross motions for summary judgment seeking to admit a copy of a will (lost wills) to probate. The Facts of Matter of Giacob…
- New York Court Reverses Order Removing Guardian For Failure To Hold Evidentiary Hearing
In Matter of Roberts v. Maxis , the New York Supreme Court, Appellate Division, First Department unanimously reversed, on the law, an order removing petitioner as co-guardian of his father and remanded the matter for a new removal hearing. …
- New York Enacts Version of Uniform Partition of Heirs Property Act
On December 6, 2019, Governor Andrew Cuomo signed into law New York’s version of the Uniform Partition of Heirs Property Act (UPHPA) ( RPAPL §993 ). What Is The Uniform Partition of Heirs Property Act? The Uniform Partition of Heirs Propert…
- New York Exemptions For The Benefit Of A Decedent's Family
When a New York resident dies, New York law provides benefits for certain members of the decedent’s family. These protective benefits are called the family exemption. Under New York Estates Powers and Trusts Law (EPTL) 5-3.1, the surviving …
- New York Inheritance Laws With No Will
When a New York resident dies with no will, they have died intestate. When someone dies intestate, New York inheritance law controls how the decedent’s property is distributed. New York Estates, Powers and Trusts Law (EPTL) 4-1.1 is New Yor…
- New York Maintenance (spousal support): Eligibility, Amount, and Duration
How New York courts award maintenance (spousal support) under N.Y. Dom. Rel. Law § 236(B): eligibility, guideline/formula rules, duration, and leading cases.
- New York Probate Quick Guides
Surviving Spouse Rights in New York Next of Kin in New York Deadlines and Timelines in New York Probate …
- New York’s Uniform Partition Of Heirs Property Act Does Not Apply Retroactively
The Uniform Partition of Heirs Property Act became effective in New York on December 6, 2019 - we wrote about it here . The goal of the UPHPA, found at RPAPL § 993 , is to preserve family real property. Pursuant to the Act’s own terms, it d…
- New York Surrogate’s Court Addresses Adequacy Of Witness Affidavit With Remote Execution of Wills
In Matter of Holmgren , a February 23, 2022 opinion, the New York Surrogate’s Court, Queens County, addressed the adequacy of affidavits submitted with a purported will executed under the auspices of New York Executive Order 202.14 (the Ord…
- New York Surrogate’s Court Awards Attorney’s Fees To Trustee and Surcharges Trustee In Same Action
In Matter of LiGreci , decided June 2, 2021, the Supreme Court of the State of New York, Appellate Division, Second Department, affirmed a Surrogate’s Court decree ordering a trustee to pay a surcharge to an objectant, and ordering the obje…
- New York Surrogate’s Court Reviews Will Contest Basics In Granting Summary Judgment Against Will Challenger
In Matter of Tsinopoulos , the Rockland County Surrogate’s Court once again showed that it is possible to defeat a New York will contest on summary judgment (which we’ve written about previously here and here ), and gave a great primer of s…
- Next of Kin Under New York Law
The term “next of kin” under New York law is synonymous with “distributees” of an intestate decedent. Next of kin under New York law are, in the following order: Surviving spouse Children Grandchildren Parents Siblings and issue of pre-dece…
- No Contest Clauses in New York Wills
No contest clauses in New York wills are valid under New York law. What is a "no contest" clause in a will? A “no contest” or “in terrorem” clause in a will basically says that anyone that contests the will is cut out of the will. The purpo…
- Opening A Safe Deposit Box After Death In New York
Opening a safe deposit box after someone dies is a frequent occurrence, particularly so if a concern exists that an original will, burial plot deed, or life insurance policy was kept inside the box. New York law provides a relatively simple…
- Priority of Payment of Claims In New York Probate
In Matter of Rosenblatt (Solomon) , the New York Court of Appeals addressed the priority of payment of claims in New York probate, in a situation where a mortgage holder sought priority of payment for a mortgage taken out after decedent’s d…
- Probate Litigation And The President: Mary Trump Sues President Donald Trump and Estate of Late Brother Over Alleged Fraud
Mary L. Trump, Donald Trump’s niece, has filed a lawsuit in New York State Court against the President, his sister Maryanne Trump Barry, and the executor of the estate of their late brother Robert Trump (in his or her capacity as executor).…
- Ric Ocasek's Will: Abandonment As Bar To Elective Share
Ric Ocasek, the front man of The Cars ( "Just What I Needed" and "Since You're Gone") and hit producer (albums from No Doubt and Weezer's "Blue" album), passed away in September 2019. Ric Ocasek’s will is making headlines. It is reported th…
- Small Estates In New York
A decedent’s estate qualifies as a small estate under New York law if it consists of no more than $50,000 in personal property. What Qualifies As A Small Estate In New York? Pursuant to Article 13 of the SCPA, §1301 : A small estate is the …
- Spousal Support Claim Survives Death of Spouse In New York
In Dean v. Dean , the New York Supreme Court, Monroe County, determined that a wife’s claim for spousal support survived her death, and could be pursued by the wife’s estate. In this case, before the parties could finalize their divorce , t…
- Stand Your Ground Laws in New York
New York stand-your-ground overview (duty-to-retreat (outside the home)): duty to retreat, statutes, civil immunity, and controlling cases.
- Summary Judgment Denying Challenge to Probate of New York Will
The Surrogate’s Court of New York, Queens County, in Matter of Fiorentino , granted summary judgment in favor of the probate of a New York Will in a December 2019 opinion. Summary judgment was granted over a challenge to the probate of the …
- Summary Judgment Granted In New York Contested Probate
In Matter of Haley , decided on December 31, 2020, the Appellate Division, Third Department, considered an appeal from an order of the New York Surrogate’s Court of Greene County in a contested probate which granted petitioner’s motion for …
- Summary Judgment In New York Dispute Over Beneficiary Designation
In the February 3, 2021 decision in Kagan v. Ameriprise , the New York Appellate Division, Second Department considered a case granting summary judgment in a dispute over the beneficiary designation of a decedent’s retirement accounts. The …
- Surviving Spouse Rights New York
New York law affords surviving spouses important widow's rights and benefits, including: Intestate Share Elective Share Pretermitted Spouse Rights Exempt Property In order to preserve all rights and benefits granted under the law, a survivi…
- Testamentary Substitutes Within New York's Elective Share Statute
Testamentary substitutes are factored into the calculation of a surviving spouse’s elective share under New York law. In Matter of Lipton , the New York County Surrogate’s Court considered a surviving spouse’s claim that she was entitled to…
- The 3/2 Discovery Rule In New York Will Contests
The 3/2 discovery rule in New York will contests limits discovery to three years prior to the contested will, and two years after the date of the will or to the date of death, whichever is earlier. The 3/2 discovery rule is found in New Yor…
- Undue Influence in New York Probate
Undue influence is one way to challenge a will in New York probate court. The other general grounds can be found here . What is Undue Influence? Undue influence occurs when the testator is unduly compelled or coerced to execute a will as a …
- Virtual Representation in New York Surrogate's Court
In probate and trust administration and litigation, all persons with an interest in the proceeding should be noticed and given an opportunity to participate. But what happens when persons affected by the proceedings cannot be located, ascer…
- What Are The Powers Of a Fiduciary In New York?
A fiduciaries’ powers are set forth in New York Estate, Powers and Trusts §11-1.1(b), which authorizes a fiduciary, among other powers: To accept additions to any estate or trust from sources other than the estate of the decedent or settlor…
- What Are The Requirements For A Valid Will In New York?
In the state of New York, EPTL 3-2.1 governs the formal requirements for the execution and attestation of valid wills. The requirements do not have to be done in the precise order set forth below. However, all the requisite formalities must…
- What Authority Does a New York Executor Have Before Letters Are Issued?
A New York executor named in a will has the authority to pay reasonable funeral expenses and to take action as is necessary to preserve the estate before letters are issued. New York EPTL §11-1.3 states: An executor named in a will has no p…
- What Is A Lost Will Under New York Law?
A lost will under New York law is a will that was known to have existed, and known to have not been revoked, but the original of the will cannot be found. Can A Lost Will Be Admitted To Probate In New York? Yes, New York’s Surrogate Court P…
- When Can A New York Fiduciary Ask The Surrogate's Court For Help?
A New York fiduciary can ask the Surrogate’s Court for help and direction in extraordinary circumstances and as to the propriety, price, manner and time of the sale of real property if the value is uncertain or dependent on the time of sale…
- When Does The New York Surrogate’s Court Have Personal Jurisdiction Over a Trustee?
In Matter of Murad Irrevocable Trust , the New York Supreme Court, Appellate Division, Fourth Judicial Department made quick work of the question of personal jurisdiction over a trustee in New York Surrogate’s Court. In Murad, a trust litig…
- When Do Inherited Property Rights Vest In New York?
Title to inherited property automatically vests in the heirs of a decedent who dies intestate in New York, however, such vesting of title is subject to the rights granted to the administrator to manage and dispose of it for purposes of dist…
- When Is Someone Unfit To Serve As A Fiduciary In New York Probate?
One of the exceptions to the eligibility of a natural person to serve as a fiduciary in New York is “one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of underst…
- When Is There A Cause Of Action Under New York Law For Mishandling A Decedent’s Remains?
In Hanna v. Fenton , the Supreme Court of the State of New York, New York County addressed a case involving the alleged mishandling of a decedent’s remains. Decedent's Next Of Kin Alleges Mishandling Of Decedent's Remains Early in the morni…
- Who Can Authorize An Autopsy Under New York Law
Who can authorize an autopsy under New York Law depends on the circumstances of death, but generally include: Spouse Next of Kin Coroner Medical Examiner When is There The Right to Perform An Autopsy? The right to have an autopsy performed …
- Who Can Petition For Probate In New York?
The persons allowed to petition for probate in New York differ between a testate (decedent had a will) and intestate (decedent did not have a valid will) estate. Who Can Petition for Probate Of A Will In New York? New York’s Surrogate’s Cou…
- Who Can Serve As A Fiduciary In New York?
To serve as a fiduciary in a New York estate, a person is eligible except for the following: Infants; Incompetents; Non-domiciliary aliens, except a foreign guardian or a person who serves with a New York co-fiduciary; Convicted felons; Per…