Probate court is a special court that specifically handles probate and other issues surrounding estate administration. It may also be called surrogate court.
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.
Executor Nomination The person selected to act as the Executor can be anyone that the testator wants to conduct the administration of the estate. There is no requirement that the Executor have any experience or expertise. The Courts give the selection of an Executor by the testator great deference and it is honored unless there exists a ground for disqualification of the person nominated. Circumstances for Not Appointing an Executor There are certain circumstances in which the Court will not appoint the Executor nominated by the testator. Surrogate’s Court Procedure Act § 707 states that a nominated executor is ineligible to serve it if they are: (a) an infant; (b) an incompetent or incapacitated person as determined by the Court; (c) a non-citizen or non-permanent resident of the United States; (d) a felon; and (e) one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office. The grounds for disqualification contained in (e) contemplate a nominated Executor that is likely to jeopardize estate assets, and put the interests of beneficiaries at risk. The party alleging that the Executor chosen by a testator is ineligible to serve based upon one of the grounds listed above has the burden to prove such ineligibility. Grounds (a)-(d) are generally not the ones that cause significant controversy and are relatively easy to prove. Ground (E) Ground (e) is the one you likely believe your sister falls under due to her bankruptcy. This is understandable since she has likely had difficulty managing her own finances in the past. However, pursuing disqualification on this ground can be a costly and time-consuming process involving litigation. This will ultimately delay the administration and settlement of the estate for many months or even years. There are certain circumstances where it is worth to partake in litigation to disqualify the nominated fiduciary. However, general mistrust is not enough to disqualify the nominated executor and would likely be a waste of time and money to pursue. Conclusion Many situations do not rise to the level of commencing a proceeding to disqualify the nominated Executor at the outset of the administration. A better way to proceed would be to retain an attorney experienced in estate administration matters to represent your interests in the estate. This attorney would communicate with the Executor or their attorney and get periodic updates on the progress of the administration. If that attorney felt something inappropriate was being done by the Executor, they would be able to advise you and to take the appropriate and tailored steps to protect your interests.
Before Execution Pursuant to Probate Code § 6300, a testator's will may pour over into a trust if the trust was formed prior to the will's execution. This means the testator's wishes will be fine as long as the trust was established before the will's execution. Concurrently With Execution Pursuant to Probate Code § 6300(a), a testator's will may pour over into a trust if the trust was formed "concurrently with" the will's execution. This means the testator's wishes will be followed if the trust and will are formed at the same time. This usually happens if there's a signing ceremony where both the will and trust are executed at the same time. Within 60 Days The expansion of Probate Code § 6300 in 2017 allowed pour-over provisions to be allowed if the trust were executed within 60 days after the execution of the will. This usually arises if the trust is formed after the will, like if a notary is not available during the signing ceremony.
Pay reasonable charges for support, maintenance, and education of the protected person The conservator has the duty to pay reasonable charges on behalf of the protected person. All documents signed by the conservator on behalf of the protected person should indicate that relationship, to avoid incurring personal liability. This means that the conservator must first make sure that the service has been rendered, and that the charge is a reasonable one. The conservator must maintain an accurate record of services he or she has performed, the time spent, and the expenses incurred in performing duties as conservator. A conservator may charge a reasonable fee for the provision of necessary conservatorship services to the protected person. For a person residing at home reasonable charges might include: payment of mortgage, rent, insurance, taxes, utilities, maintenance of the home, needed in-home services of the person, medical, clothing, and other personal items. For a person residing in a facility, reasonable charges may include: reviewing the level of care assessment (case-mix) of the protected person to be sure the facility’s charge is correct for the level of care required; ensuring that the protected person has sufficient funds on hand for personal spending, and reviewing and monitoring the medical and personal services provided. Pay all just and lawful debts of the protected person, pay reasonable charges for support, maintenan The conservator of the estate must pay all of the protected person’s debts as they become due. The conservator is also responsible for filing income tax returns on behalf of the protected person. Possess and manage the estate, collect all debts and claims One of the conservator’s first duties is to take control of (possess) the protected person’s property. This involves conducting a comprehensive search for all assets the protected person owns, and arranging for transfer of title or possession to the conservatorship. The conservator shall investigate and determine all debts and claims in order to pursue collection. If there is a need to protect assets, the conservator may, with the consent of the court, institute lawsuits and act on behalf of the protected person. Also, the conservator must invest all funds, preserving, protecting, and conserving assets and producing as much income as possible with minimal risk to the principle asset. The best source of information of what the protected person owns may be the protected person. Review with the protected person the financial records, such as current bank and broker statements, income tax returns, account ledgers, deeds and insurance policies. The conservator has the right to enter the protected person’s safe deposit box and remove the contents, upon presenting a certified copy of his or her Letters of Conservatorship to the financial institution. If the box is rented with another person, that other person should be present when the box is opened. What are the Conservator’s duties at the time of appointment? At the time of appointment the conservator of the estate must complete the following: • Prepare an inventory of all property; being sure to check for all bank accounts, stocks, bonds, and real estate in the protected person's name. • File a change of address with the post office to ensure all future mail is forwarded to the conservator to aid in locating assets (1099's issued at year end can often help locate additional assets). Personal mail, however, must be returned to the protected person unopened. • Take control of all property and assets, and make sure they are adequately protected against loss. • Keep thorough records. • Determine and collect all income. • Pay the protected person's debts as they become due. • Invest the property in investments suitable to the protected person's circumstances. • Determine whether or not the protected person must file and pay income tax returns. How does a Conservator manage insurance? The conservator must consider the following when inspecting the protected person's insurance: a. Real property insurance. Is the property adequately insured/replacement value? Are the premiums current? b. Household insurance. Does the policy contain adequate coverage? c. Health insurance. Is the policy cost effective? Is there duplicate coverage with multiple policies? Is there Medicare A & B coverage? d. Life insurance. Locate any and all policies. Are premiums current? Is the insurance necessary? How does a Conservator manage real estate? Care and maintenance of real estate. The conservator of the estate must arrange for the care and maintenance of the property such as, cutting grass, snow shoveling, trash removal, furnace inspection, or adequate heating fuel. When the conservator is appointed he or she must determine the following: • Who has access to the property? Should locks be changed? • Is the property insured? Have the insurance premiums been paid? • Are the real estate taxes current? a. Sale of real estate. If the property the conservator wants to sell is the principal residence of the protected person, it must be determined that the protected person will be unable to return to independent living. Conservators should consult with their attorney on such matters. Keep in mind the following requirements: • Property cannot be given away. • Secure a doctor's statement to determine the protected person's physical health and whether or not the person is able to live independently or with assistance at home. • Petition the court for permission to sell. The court may choose an appraiser to appraise the property. Appraisals are completed after the hearing. • Relatives may be given a chance to purchase at appraised value prior to the general public. • Property cannot be sold for less than the appraised price without court approval. Prior to closing, have the court issue an order directing sale, order confirming sale, and current Letters of Conservatorship. The conservator's deed must be prepared. Often the closing company wants to see these documents prior to closing. Does the Conservator of the estate ever have to go to court? A conservator of the estate has the authority to complete most of these tasks, but some, such as the sale of real estate, require additional authorization from the court. The conservator should obtain competent legal and financial advice, particularly in the management of large asset situations, contested, or controversial situations. What is the inventory? An inventory of all assets owned by the protected person at the time of the conservator’s appointment must be filed with the court. The inventory provides several pieces of information to the court: • It serves as the initial listing of property for which the conservator will be held accountable. • It assists the court in determining the amount of the conservator’s bond. • It advises the court of the extent of the protected person’s estate, and indirectly, of the income likely to be received for the protected person’s support. The inventory of the property includes: • Real estate • Furniture and household goods • Wearing apparel • Corporation stocks • Bank Accounts, Certificates of Deposit, Receivables • All other personal property The conservator determines the fair market value of all assets listed in the inventory. The conservator’s attorney should assist in preparing the final draft of the inventory and filing it with the court. If the conservator fails to file an inventory, the court may issue a citation, and may remove him or her as conservator. What financial records is the Conservator responsible for keeping The conservator is responsible for keeping accurate financial records at all times. In order to do this the following steps are recommended: • Establish a separate conservatorship bank account to receive and disburse all deposits and make all payments. Make all such disbursements by check, not cash, so an accurate record will remain. • Maintain a complete and accurate ledger which shows all funds going through the conservatorship account. Keep all receipts of expenses paid for the ward. • Seek approval from the court before making large purchases. When does Guardianship or Conservatorship terminate? A guardianship or conservatorship terminates upon the death of the ward/protected person, upon a determination of incapacity of the guardian/conservator, upon removal or resignation of the guardian/conservator, or upon restoration of capacity of the ward/protected person. Death of the Ward or Protected Person When a ward or protected person dies the guardian or conservator no longer has authority to act on their behalf. However, it does not relieve the conservator from the liability of accounting for their actions, nor does it relieve him or her of the obligation to file a final account with the court of the disposition of the assets of the protected person’s estate. The conservator must file a final accounting and ask the court to set the account for hearing and discharge. Any funds remaining in the conservatorship account should be paid into an estate account opened for the estate of the ward, after court permission is granted to do so. What are Conflicts of Interest? A conflict of interest happens when your personal or financial interests as conservator go against those of the ward or where your actions appear to be self-serving (for your own benefit). For example, it would be a conflict of interest for a conservator to get a loan from or buy property belonging to the ward’s estate. Whenever you think you might have a conflict of interest, even if you are not sure, report it to the court. Just because you may have a conflict of interest does not mean you cannot serve as conservator, as long as you keep the court informed.
Box 1 - Name In this box, include the name of the personal representative named in the DE-147. I usually recommend including the name as it appears on personal representative's driver's license or government-issued identification. Box 2 - Date of Birth In this box, include the date of birth of the personal representative named Box 1. Box 3 - Driver's License Number and State of Issue In this box, include the driver's license number of the personal representative. Also include the state of issue for the license.
Surrogate's Court If you suspect that somebody has wrongfully taken money or property from your mom before she died, you can commence proceedings in the Surrogate’s Court asking the Court to allow you to investigate who took the money. After the investigation, if you find out that the money was wrongfully taken from your mom, you can also bring a proceeding asking the Court to Order the money be returned to your mom’s estate. Discovery Proceeding The first step in this process is called a discovery proceeding and this proceeding may be commenced by you as the Executor. The purpose of this type of proceeding is to determine who took the money and is the investigatory stage of the proceeding. In a discovery proceeding, the Court usually grants you permission to take the deposition of any individual who may have information relating to the money taken from your mom during her lifetime. You do not need to have concrete proof that the individual has taken the money; you just need to demonstrate to the Court that the individual may have information regarding the stolen assets. Turnover Proceeding After you complete your investigation, and if you still believe that assets were wrongfully taken from your mom, you can convert the discovery proceeding into a turnover proceeding. The turnover proceeding is akin to suing someone asking for the return of the money they may have taken. In the turnover proceeding petition, you will show the evidence you obtained during the discovery proceeding that someone wrongfully took your mother’s the assets. Once proven, the Court can direct the person who stole the assets to give the assets back to the Estate. Since these proceedings have specific procedural requirements and several steps with the Court, it is best to seek the advice of an experienced estate administration attorney if you are confronted with these issues.