» Estate Litigation

Breaching Marital Agreements at Death in New York

Seymour and his wife just couldn’t make their marriage work. So in 1957 they entered into a separation agreement. The separation agreement required Seymour in any will he made to treat the estranged couple’s three children equally with any child… Read More
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Who Can Object to a Will?

If you’ve been left out of a will, you may have rights. Certain people are allowed to contest, or object, to a will’s validity, per New York law. “Probate” is the process of proving to a court that a will is valid. In New York, the universe o… Read More
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Categories: Estate Litigation

How Joint Bank Accounts Work, And How Sometimes, They Don’t

Joint bank accounts make great estate planning tools, except when they don’t. Whether a joint bank account is right for you depends on on a lot of factors. Joint bank accounts make perfect sense for some people. They can cause family infighting and… Read More
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Categories: Estate Litigation

Kinship Proceedings in Surrogate’s Court: What They Are, How They Work, and How They’re Won

In a Kinship Proceeding, the New York Surrogate’s Court seeks to determine who is entitled to inherit from the estate of a deceased person who did not have a Will. The Surrogate’s Court is the court in New York State which handles most matters re… Read More
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Categories: Estate Litigation

What are Will Contests and Objections to Probate?

In New York, before a last will and testament is deemed a valid instrument, the general rule is that the person named executor in the will must first prove the will as valid. This process is called “probate“. Probate is the latin word for “prov… Read More
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Categories: Estate Litigation

Lost Will: “I can’t find the original Will. Help!”

When someone passes away in New York with a Will, generally, the Will must first be proven as valid to the Surrogate’s Court Judge. Proving a Will as valid to a Court is known as the “probate” process. “Probate” is the Latin word for “pro… Read More
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Categories: Estate Litigation

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Frequently Asked Questions

If I petition to have a guardian appointed in a Mental Hygiene Law Article 81 proceeding, will I have to serve as guardian?

No. Even if you are the “petitioner” – the person who is asking the judge to appoint a guardian – you can ask the judge to appoint someone else. If there are no family or friends willing and able to serve, the judge can appoint a non-profit organization or “independent” professional guardian to serve.

My disabled child is about to turn 18. Am I automatically able to make decisions for them when they turn 18?

No (except for limited exceptions). In New York, parents are the natural guardians of their children until age 18. However, once a child reaches 18, even if they are developmentally or intellectually disabled, a parent cannot automatically make decisions for their adult child. Guardianship is often necessary for developmentally and intellectually disabled adults who do not have capacity to manage their own affairs without assistance.

If I am appointed guardian, can I force my ward to take psychiatric medication?

Although most guardians are authorized to make routine and non-routine medical decisions on behalf of their ward, the administration of psychiatric medication to a person who objects requires special authorization from a judge, even if you were already appointed guardian.

How long does it take to get a guardian appointed and authorized to act in a Mental Hygiene Law Article 81 proceeding?

There is no set time. However, from the time counsel is retained, it usually takes about 2-4 months total for the guardian to begin acting. However, if a guardian is needed immediately, the judge can appoint a “temporary guardian” while everything gets sorted out. This speeds up the process.

What is the difference between a guardian and a conservator?

Generally, none. New York used to use the terms conservator (today’s version of guardian of the property) and committee (today’s version of guardian of the person). Many states still use the term conservator, but the concept is the same.

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