By Jason Stern
The reason most of us should have a NY will is to protect those we care about most after we are gone. To include someone in your NY estate plan the NY Estates Powers & Trusts Law (EPTL) states that a valid testamentary instrument, “requires that the signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by him or by his direction. The testator may either sign in the presence of, or acknowledge his signature to each attesting witness separately.”
As a NY estate lawyer with three decades of experience probating NY estates I can tell you these formalities as proscribed by the NY estate law above are safe guards erected around the person making their NY will, commonly referred to as the testator. These safeguards included in the NY estate law are there to prevent fraud. Lastly, the testator must publish his or her intention to create a testamentary instrument in the presence of each attesting witness to establish the testamentary acknowledgement of the document’s binding purpose. Without these ancient requirements as proscribed by the NY estate law, we can only imagine what types of “testamentary promises” potential beneficiaries would assert against the legitimate beneficiaries of NY estates.
Absent a testamentary instrument, also called a NY attorney drafted and supervised will, the decedent’s estate goes into what is called intestacy. This is where all of the decedent’s assets solely titled in the decedent’s name without designated beneficiaries, passes through the administration process and ultimately finds their way to the next of kin. However, if the decedent died without any identifiable heirs, these cases can become kinship cases which can drag on for years and years with the decedent’s estate ultimately being deposited with the NYS Office of the Comptroller. In cases where there are identifiable surviving heirs, the decedent’s estate will ultimately pass to said heirs whether that was the decedent’s intention or not.
However when we pass with a NY estate lawyer drafted and supervised will the estate goes through the probate process. The probate process is the legal equivalent to flying first class as opposed to intestacy which is more like coach. Sometimes potential clients have reservations concerning the NY probate process due to the fact that there used to be a State and Federal Estate Tax owed on any and all estate assets above $600,000.00 in New York. These outdated laws were overhauled in 2010 to reflect much higher NY estate tax exemptions which would be $5,930,000.00 as of January 1st 2022, per individual. The more onerous Federal Estate Tax exemption is raised to $12,060,000.00 per individual as of January 1, 2022 and $24,120,000.00 per married couple. So many of the previous concerns regarding the costs associated with probate in NY estates are unfounded.
More specifically, the NY probate process is the act of filing the NY estate lawyer drafted will and accompanying petition with the Surrogate’s Court. Eventually the nominated executor named within the NY will is appointed and the proceeds of the NY estate are distributed pursuant to the terms of the NY will. As a safeguard, absent a validly executed NY will, ancillary documents such as promissory notes are not legally binding representations of the donative intent to include individuals within the decedent’s NY estate. Most Queens estate lawyers will agree that having your NY estate lawyer draft your will and keep it d=for safekeeping is one of the best strategies you can enlist.
Estate of James Larmett
James Larmett and his wife Linda moved into the Sutton Place apartment building known as 14 Sutton Place South more than twenty-eight years ago. James and Linda resided there for nearly 30 years until their passing. During that period the couple who never had children of their own befriended their doorman, Jose Padilla as their own personal friend. Over the years not only did Padilla personally care for James and Linda but he often cared for their pets as if they were his own. And in exchange the couple promised their longtime friend and doorman, Jose Padilla, one-third of their multi-million dollar NY estate when the time came.
With the 2016 passing of Linda Larmett, Padilla upheld his promise to take care of her surviving spouse James Larmett who was now all alone. Padilla would often assist James who suffered from health ailments even sometimes spending the night in his apartment when a caretaker was not available to look after his well-being. Before the passing of James Larmett, Padilla urged James to include him in his NY will which currently provided the entire estate to pass to three different charities. Unfortunately James Larmett never updated his NY will to include James Padilla. Now, Mr. Padilla has come forward with documents that he claims evidence Larmett’s donative intent to bequest him one-third of the NY estate. Padilla produced documents from a company called Legal Shield who helps people draft their own NY wills online. The documents included completed questionnaires from Legal Shield stating that Larmett intended to in fact bequest Mr. Padilla One-Third of his NY estate. However since a formal NY will was never drafted by a NY estate lawyer and executed by Mr. Larmett, these documents have no legal significance. As such, the NY County Surrogate’s Court recently dismissed James Padilla’s case ruling there are no documents produced which would bestow the distribution of NY estate assets onto Mr. Padilla as no testamentary document was executed with the formalities as required within the NY estate law.
If we think about it from the perspective of a NY estate lawyer, these formalities within the NY estate law are there to protect us. These laws require testamentary instruments to be drafted and executed in accordance with the ancient rules as required by law. However, occasionally these laws can obstruct a just outcome in a NY estate when testamentary intent was not memorialized in accordance with the requirements as proscribed within the NY estate law. Here there is little doubt in my mind as a NY estate lawyer that decedent James Larmett did not legitimately intend to leave Mr. Padilla a portion of his NY estate. However, Mr. Larmett failed to go to a NY estate lawyer to update his estate plan to reflect his true intentions, if those were his true intentions. Absent a validly executed NY will a promise to leave someone a portion of their NY estate is just that, a promise and an empty one at that. One of the first things they teach NY estate lawyers in law school is promises are nonbinding but properly executed NY wills are.
If you or someone you love is thinking about protecting their NY estate you may want to know what options you have under the NY estate law. Feel free to call an experienced NY estate lawyer at The Law Offices of Jason W. Stern & Associates, at (718) 261-2444 for a free consultation. Our Queens estate lawyers have 60 years of combined NY estate law experience handling these often complex NY estate cases in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Richmond, Orange and Dutchess.