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Probate

Probate is the legal process for proving a will valid or invalid, appointing an executor, and distributing estate assets according to the will or state law.

Kera Murphy Reed | Oct 7, 2019

Removal of a Fiduciary, It’s Not as Easy as You May Think

Removal of a Fiduciary However, many situations are not as straightforward as the grounds listed in SCPA § 719. While you may be working with a fiduciary that does not act in the manner that you wish, oftentimes, the conduct does not rise to the standard that would warrant their removal. Courts have held that the removal of a fiduciary pursuant to SCPA §719 is equivalent to a judicial nullification of the testator's choice and can only be done when the grounds set forth in the statutes have been clearly established. The Court may remove a fiduciary without a hearing only where the misconduct is established by undisputed facts or concessions, where the fiduciary's in-court conduct causes such facts to be within the court's knowledge or where facts warranting amendment of letters are presented to the court during a related evidentiary proceeding. Requirements for Removal Pursuant to SCPA § 711 a person interested may petition the court to remove the fiduciary. Some of the grounds listed in the statute include: that the fiduciary wasted or improvidently managed property; that the fiduciary willfully refused or without good cause neglected to obey any lawful direction of the court; or the fiduciary does not possess the necessary qualifications by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office. Again, while there are many cases where fiduciaries have behaved badly, courts are generally hesitant to remove fiduciaries unless the assets of the estate/trust are put at risk. Not Breaches are Created Equal Even though you may be unhappy with the conduct of a fiduciary, not every breach of duty will result in the removal of the fiduciary. Many breaches can be addressed in an accounting proceeding either through surcharge or denial of commissions. While a fiduciary can be removed if conduct that violates SCPA § 711 or § 719 can be proven, it is often a lengthy and expensive process that involves the exercise of discretion by a court that is hesitant to remove a fiduciary chosen by the testator. Removal Proceeding A proceeding to remove a fiduciary should only be undertaken if it can be proven that the assets of the estate/trust are in danger under the fiduciary’s control. Mere speculation or distrust will not be enough to remove a fiduciary. If you believe that the fiduciary of an estate or trust is not managing the estate or trust properly, you should consult with an attorney experienced in estate administration matters that can review the facts and determine the best course of action.

Lauren Ashley Macdonald | Sep 30, 2019

Posthumously Conceived Children in New York and Connecticut

New York Law on Posthumously Conceived Children (“PCC”) According to New York law, a child born after the death of a genetic parent will be deemed a child of that parent if the following conditions are met: 1. The genetic parent, in a written document signed not more than seven (7) years before his or her death, (a) expressly consented to the use of the genetic material for posthumous reproduction and (b) authorized a person to make decisions about the use of the generic material after the genetic person’s death; 2. Within seven months of the issuance of letters, the authorized person must give notice of the existence of the stored genetic material to the personal representative of the genetic parent’s estate; 3. The authorized person must record the writing in the Surrogate’s Court within seven months of the genetic parent’s death; and 4. The genetic child must be in utero within 24 months or born within 33 months of the genetic parent’s death. If these requirements are met, then a PCC will be considered a child of the genetic parent for purposes of gifts to children, issue, descendants and similar classes in instruments executed by the genetic parent or other individuals. In the event of divorce, the authority under the written instrument signed by the genetic parent is automatically revoked. Connecticut Law on Posthumously Conceived Children ("PCC") According to Connecticut statute, a PCC is deemed to have been born during the deceased genetic parent’s lifetime if the two following requirements are met: 1. The decedent, in a writing signed and dated by the decedent and the decedent’s spouse, specifies that genetic material may be used for posthumous conception; and 2. The PCC is in utero within one year of the decedent’s death. The spouse must also give a copy of the signed writing described above to the estate fiduciary with in the later of 30 days of death or appointment of a fiduciary. However, the failure to do so will not prejudice the rights of the PCC.