Practice Areas

At the Law Office of Anthony Nigro we focus on estate matters throughout the state of New York including the following counties: Westchester County, Bronx County, New York County (Manhattan), Queens County, Kings County, Rockland County and Orange County; For an individual consultation please call (914) 595-6527 and set up an appointment to come in and talk. There is usually no initial consultation fee, unless stated up front. We are conveniently located in Dobbs Ferry, NY and have offices to meet in each of the respective counties we practice in.

ESTATE PLANNING

With the advent of the fiscal cliff in New York and the hopeful ongoing changes to the estate tax imposed by the New York Legislature, estate planning has never been more important. Everyone’s situation is different, so estate planning can be as straight forward as a Last Will and Testament, Power of Attorney, and Health Care Proxy or as complicated as your specific circumstance demonstrates. Each case is fact sensitive depending on your assets and wants.This can mean any of the following services:

• Last Will and Testament with a Guardianship Provision for Minor Children
• Testamentary Trusts
• Medicaid Trusts or Income Only Irrevocable Trusts
• Living Trusts or Revocable Trusts
• Irrevocable Life Insurance Trusts or ILITs
• 1st Party Special Needs Trusts or Supplemental Needs Trusts
• 3rd Party Special Needs Trusts or Supplemental Needs Trusts

New York Wills

When a person begins to approach the topic of estate planning, the first thing that usually comes to mind is a Last Will and Testament. Having an attorney prepare your will is always a good idea. An attorney’s supervision of the execution ceremony gives rise to a rebuttable presumption that all of the requirements of the statute of wills were met. (Matter of Kindberg, 207 N.Y. 220, 100 N.E. 789 (1912) (https://casetext.com/case/matter-of-kindberg).

This is incredibly important. Will contests happen all the time. Take a second and think of your family. Now think what would happen if you threw a pot of money in the middle of a room on a day they all happened to be there? When an attorney supervises the will he or she drafted, it helps everyone form an orderly line and walk slowly to the pot, if they are entitled to walk to the pot at all. In essence, this helps a decedent’s wishes actually come to fruition.

A will also gives you the ability to declare exactly who gets what and how much. Individual items you own, like a painting or expensive jewelry, can be specifically given upon death to a certain person.

A will is where a family with minor children will declare who their directed guardians of the property and persons will be in case of their early demise. Although a tough issue to think about and even tougher to talk about, it is imperative for any family with children under 18. This will not only save your estate money, but your children are less likely to be caught in a guardianship battle down the road on the small possibility this tragic event ever occurred.

In today’s growing digital age and the lack of any concrete New York law, every will should also have a digital assets provision. (see Estate Planning for Digital Assets in New York)

Every will should also have a contingent supplemental or special needs trust in it. Sometimes these are called Trigger Trusts. This is imperative in the case of a child or beneficiary with a disability. It will enable that person to continue to receive any governmental assistance while using the inherited funds for appropriate expenses meant to enhance the disabled beneficiary’s quality of life. If a carefully drafted 3rd party supplemental needs trust is put into effect, it allows for the remainder of that money not used by the disabled party to be distributed to any beneficiaries of the disabled person, clear from any liens (i.e. Medicaid). This is ideal in the case of a parent with multiple children where one of them has or may develop a disability.

As part of every estate planning package, there should also be a Power of Attorney, Health Care Proxy and sometimes separate burial instructions.

New York Power of Attorney

A Durable Power of Attorney has several advantages. Without one, the only way to take over the affairs of an incapacitated person is to have a guardianship proceeding. Guardianship proceedings, although necessary is some instances, are better off avoided due to the complexity and cost. I think of a power of attorney as a small insurance policy that allows your family a smooth transition to take over your affairs in the event of an incapacitating event. It’s incredibly cost effective, does not require a judicial proceeding, and can save you and your family not only tens of thousands of dollars, but the true value lies in less heartache – being able to move forward where without it you would be in stuck in limbo for a significant amount of time.

The agent must always be someone the principal truly trusts 100%. Modern estate litigation revolves around inappropriate use of powers of attorney.

New York Health Care Proxy

A health care proxy is another small insurance policy that allows your agent to make medical decisions for you in the case of your incapacity. It’s not an easy conversation to have, but again, none of this is. When you sign a health care proxy and in the unlikely event you become incapacitated, now that agent will be making your health care decisions for you. Accompanying this important document is usually a health care declaration that will help assist your agent in making decisions that parallel what your wishes are in certain circumstances.

Advanced Planning – Revocable and Irrevocable Trusts

Sometimes, a will, power of attorney, and health care proxy are a good start, but an individual may require more advanced planning. This comes in numerous forms: estate tax implications, especially New York State’s estate tax cliff, preventing possible medicaid liens, second marriages, maximizing charitable giving while minimizing taxes, or want of privacy in one’s estate.

Revocable Trusts

Revocable trusts have several benefits. The most highly cited one is that they avoid probate. Probate does take time and does cost money. In a case where a client may own real estate in multiple states, a revocable trust can avoid multiple probate proceedings. The assets don’t need to wait for a decree of probate and they transfer immediately upon the death of the Grantor of the trust. Prospective clients must remember that revocable trusts will usually require the re-titling of all the assets that are placed in the trust and that there are extra filling fees as well as time expense. There are some myths out there that these trusts save taxes, prevent creditors from attacking assets and prevent heirs from challenging the document, but these are just not true.

Irrevocable Trusts

The most common irrevocable trusts I speak to clients about are Irrevocable Life Insurance Trusts (ILITs) and Irrevocable Income Only Trusts (IIOTs or Medicaid Trusts). The main purpose of an ILIT is to avoid federal estate taxes. If the trust is drafted and funded correctly, your loved ones should receive all of your life insurance proceeds fully, without having to pay estate tax. The main purpose of an IIOT is to help protect property transferred to the trust from medical or medicaid reimbursement should you ever require long term care. The grantor must relinquish control of such property, but usually the pros outweigh any of the negatives. See this article for some common questions when it comes to this vehicle for planning.

Everyone’s situation is different and there is no catch all equation for each person’s wants and desires, but the important thing in my mind is that you take some sort of estate planning action. When there is way around a certain issue, attempting to take advantage of it and maximizing your beneficiary’s shares is only logical. Everyone works hard for their money throughout their lifetime and it’s a shame when New York State dictates who gets it or taxes a large chunk of it in taxes when there may have been a way to minimize those negative results.

If you have questions about Wills and/or Estate Planning anywhere in the State of New York, call the Westchester Law Office of Anthony Nigro at (914) 595-6527.

Administering an estate is no easy affair and can be troubling for any executor. When there is a will we have probated estates in all counties of New York City and the surrounding counties including Westchester County, Rockland County, Orange County and Putnam County. When there is not a will, we have done the same through the process of administration. Although the probate process is typically slower than most people would like, we do our best to push each petition as quickly as possible so that each family can move on with their lives.

How a Probate Attorney Can Help you Through a Difficult Time

Probate’s legal definition is “the act or process of proving a will” stemming from the Latin verb probare: to test, prove, examine. Add a conservative nine months of petitions, affidavits, appointment of a fiduciary, a marshaling of the assets, and an accounting and that “test” is complete. The petitioner, usually the executor, must prove to the Surrogate’s Court that the presented will was in fact the will of the decedent and after proving the will is valid, must follow all the statutory conditions in order to distribute the estate. When no will is presented, then a similar petition is followed except the decedent has no explicit wishes and the estate passes by intestacy, more specifically, EPTL § 4-1.1.

A simple way to think about probate is that it is New York State’s way of making sure that the decedent’s wishes are fairly followed. Although somewhat lengthy and convoluted at times, the probate process will make sure all of the decedent’s debts and expenses are paid and will ensure that the named beneficiaries in the will actually receive the funds. It also allows for any possible contested issues to be presented to the court. Remember that probate takes at a minimum 9 months to a year, with no hiccups or court delays.

It is our job to understand your goals before getting involved in any litigation and help you weigh the positives with the negatives. Contested estate matters are usually lengthy and emotionally draining and we do our best to provide you with the legal zeal and emotional support when you need it. We consider taking cases on contingent fee basis and pride ourselves in having most of our estate litigation cases come in from referrals. It is very easy to feel overwhelmed when it comes to a contested estate matter and we are here to help you through that difficult time. Matters include:

• Will Contests and 1404 depositions
• Contested Fiduciary Appointments
• Contested Accountings
• SCPA § 2103 Turnover Proceedings
• Parent Disqualification
• Spousal Disqualification
• Breach of Fiduciary Duty
• Contested Powers of Attorney
• Fraudulent Conveyances/Transfers
• Real Estate Partition Actions
• Will/Trust Construction
• Trust Litigation
• All other Probate and Administration Litigation

Will Contents

When most people think of estate litigation will contests usually come to mind first. This is fair because will contests happen very often. Generally, in New York, there are 4 ways to challenge the validity of a will:

• Undue Influence
• Fraud
• Testamentary Capacity
• Due Execution

Each of these is a separate claim of action depending on your specific case. Did mom have dementia and she had no idea what she was signing? Was the will drafted and witnessed by an attorney? Did a sibling live with mom and feel like he/she was entitled to a majority of the estate and made that a reality? Who witnessed the will? Does the signature match all of mom’s previous signatures? Does one page of the will not really match up with the others? Questions like these usually spark the phone call to me and then I will more fully explore whether we have a valid cause of action with you.

Sometimes these causes of action overlap, sometimes they do not. My best advice when it comes to a potential will contest is to set up a consultation so that we may begin a conversation about the perspective of a successful challenge. In estate litigation, it important to note that success usually comes in the form of takeaway numbers. Sometimes winning may not necessarily be the best financial decision for a potential objectant. I do not say this lightly because there are certainly times when going all the way is the only way to a true resolution. I do my best to keep the whole picture in mind throughout the entire process. It’s my job to keep the client first in mind and balance that with the prospective of winning

Payment is always an issue for any estate litigation case. I usually charge hourly and I do take contingent cases, but this after a careful vetting process. Sometimes it is in the client’s best interest to pay hourly.

Discovery/Turnover Proceedings (SCPA § 2103)

Discovery/Turnover proceedings are for the purpose of “effectuating the delivery to the estate of property which is an asset of an estate” (Matter of Cooke, 112 Misc. 2d 167, 170). I know. What does that actually mean?

It means that a fiduciary may bring an action to conduct a legal fishing expedition.  This is a powerful phrase. If it is found that property was misappropriated, then the discovery proceeding is converted into a turnover proceeding where the property is brought back into the estate through more formal discovery and a potential trial.

Cases like these usually arise in situations where you knew Mom had that house, but for some reason the house is now titled in your Aunt’s name. The “house” can be substituted by any:

• personal property
• real property in the State of New York
• business and partnerships
• non-probate assets
• proceeds of property sold or transferred
• personal property removed the state
• real property in another jurisdiction

These cases almost always stem from a client stating that “something just didn’t feel right.” When something doesn’t feel right or something is obviously missing from an estate, a discovery/turnover proceeding may be an excellent option to getting it back.

Claims Against an Estate

I work with individuals and businesses alike to enforce claims against estates. New York has specific rules when it comes to making sure a decedent’s debt is paid and I encourage anyone who is in this position to move quickly and make sure these claims are in the proper form. Specifically these rules are governed by SCPA § 1802 and 1803. Generally, the more time that passes, the harder it becomes to get a debt enforced on an estate. New York has a 7 month period where the appointed fiduciary is liable for paying the debts. After 7 months has passed and if the fiduciary has in good faith made distributions to the beneficiaries, the fiduciary is no longer liable. It is not impossible to enforce a valid debt after this time, but it becomes much harder.

Contested Fiduciary Appointments/Removal Proceedings

Many times, especially in the realm of Administration, contentious relationships occur when there are two or more parties who want to be appointed fiduciary to the estate. A fiduciary may be found ineligible or disqualified under specific reasons specified under statute, unfit for his/her position due to prior mismanagement of property, if he/she has acquired the fiduciary position by a false material fact, dishonesty, irresponsibility, or if they have failed to account.

Petition to Compel Accounting/Contested Accountings

A fiduciary’s final accounting is supposed to provide beneficiaries a complete overview of all of the fiduciary’s acts. It’s a culmination of all assets the executor or administrator has taken in, the expenses paid, gains and losses on the property, and a list of who was actually given what. It may also list any income or estate tax payments as well as the fiduciary’s commission.

Interested parties in the estate or trust have the right in these circumstances to review this accounting, pose questions, and ultimately file objections to the accounting if necessary. If an accounting has not done, an interested party may also file a petition to compel an accounting in order to bring more of the actual facts to light.

Remember that not every estate may or even should do a formal accounting. Informal accountings using receipt and releases are effective when there is likely not going to be a contest.

All other Estate Litigation:

• Spousal Right of Election
• Will Construction
• Disqualification of Spouse to Inherit
• Breach of Fiduciary Duty
• Trust Litigation

The Law Office of Anthony Nigro, PLLC has extensive experience with residential real estate closings in Westchester and throughout lower New York States, including:

• residential single family sales and purchases;
• multi-unit sales and purchases;
• co-op sales and purchases;
• condo sales and purchases;
• commercial sales and purchases.

The nature of real estate closings in New York is going through a period of transition where the “easy”, straightforward deal is becoming the exception rather than the rule. Title companies are becoming hyper focused on boundary line issues, making every deal a potential minefield. If encroachments are found that are over twelve inches when a survey is completed, issues arise.

Issues with certificate of occupancies and the cities, towns and villages that issue them are becoming commonplace. For example, in the village of Dobbs Ferry where we are located, there is a requirement that every Seller have a Certificate of Continuing Occupancy before the Seller can sell their house. This involves a home inspection and if certain areas of your property were refashioned without a permit or done incorrectly, then a potential deal can go quickly awry or cost the property owner/s a large amount of unexpected expense.

Buyers are becoming extremely savvy and particular, and for good reason: the market is currently at an all time high. When buyers are paying top dollar, especially here in Westchester County, there is an expectation of a near-perfect product. Thus, issues with certificate of occupancies, property use and each individual municipality’s quirks are further complicating what was once, at least publicly seen, as a straightforward practice area.

Thus, at our office we do not churn out real estate closings. Every case is given individual attention and every case has it’s own potential pitfalls and needs. We give each closing the individual attention it deserves and treat it just like every other case we have. We answer emails in timely fashion and schedule telephone calls to speak about possible issues that can arise.

Please feel free to inquire if our office would be a good fit for you. We charge a minimum flat fee with an hourly fee built in for events that are outside the usual scope of a real estate closing. All representations for any sale or purchase are subject to our office accepting the case.