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Making Crucial Decisions After the Death of a Spouse [Top]

New York Times Saturday, August 28, 1993 - Post Mortem Estate Planning

When Arthur Margolies died quite suddenly at age 40 several years ago, he left behind three young daughters and his wife, Ellen. Coping with the death and dealing with the children was demanding for Mrs. Margolies, who was also 40. But some elements of the family's financial future had to be addressed quickly.

Mitchell E. Wilensky, a Hauppauge, New York lawyer who specializes in financial planning after a death said the following steps should be taken within six weeks of a spouse's death.

1. Evaluate Benefits

Within days of her husband's burial, Mrs. Margolies was visited by the head of personnel of Standard Microsystems Hauppauge, which had employed her late husband. The company appraised her of her benefits.

  • Medical insurance for the family for two years at no charge available for three more years for a fee and a higher deductible.
  • A life insurance policy to be paid immediately.
  • A lump sum payment in lieu of accrued vacation, back pay and sick days for Mr. Margolies.

2. Contact Life Insurer

Mrs. Margolies called her husband's other insurer and arranged to have benefits paid after she presented a death certificate.

3. Notify Social Security

As a surviving spouse she was eligible for social security. But it took about three months for paperwork and visits to the Social Security office for Mrs. Margolies to receive her first monthly check. The lesson: don't delay.

4. Check On Other Retirement Money

Although Mr. Margolies had no pension through Standard Microsystems, he was entitled to a small one from GTE, where he once worked. Mrs. Margolies will begin receiving that money in 2006, the year her late husband would have turned 59.

5. Dispose of the Estate

All the couple's assets were easily transferred to her because everything was in both names. She simply presented a death certificate to transfer the deed to the house and her husband's car.

Mrs. Margolies Levine, who has since remarried, recently noted that it's important not to make rash decisions at a vulnerable time. "Wait it out until you can see clearer," she said.

She used the lump sum from insurance and her husband's former company to pay down part of her mortgage.

In Retrospect, She said she would seek the advice of a certified financial planner. "I made some mistakes." She said. "I didn't get adequate investment advice."

Contested Administration Proceeding - World Trade Center September 11th, 2001 [Top]

Surrogate's Court of the State of New York County of Kings
Administration Proceeding Estate of:
Godwin Forde /VK/A Goodwin Forde (Deceased)
Decision File No. 1625/02

Feinberg S.

This is a contested proceeding for the issuance of letters of administration for the decedent, whose death was precipitated by the terrorists attack upon the World Trade Center in Now York on September 11, 2001. After conferences held with the court, the parties have entered into a stipulation of settlement a copy of which is now filed with the court

Objections having been withdrawn, the petition is hereby dismissed. Pursuant to the terms of the stipulations letters of co-administration shall issue to Deborah Crornona, Angela Alleyne and Charlene Carmen Forde upon their filing of a new petition and their duly qualifying according to law.

The co-administrators are directed to file their accounts within one year from the issuance of the letters and to cite all known and unknown distributes at that time.

The co-administrators shall be prohibited from making any distributions or payments without further order of this court.

Settle Decree.

Michael H. Feinberg
Dated: Brooklyn, New York
January 16, 2003

Right to Jury Trial-Proceeding to Set Aside Revocable Trust [Top]

MATTER OP TISDALE (171 Misc 2d 716, 655 NYSZd 809)
In the Matter of the Estate of Genevievc Tisdale, Deceased.
Surrogate's Court, New York. County.
January 31, 1997


The distributees of decedent's will arc entitled to a jury trial of their proceeding to set aside a revocable trust created at the same time as a pour-over will which incorporated by reference the terms of the trust, since a revocable trust actually functions as a will. In the context of decedent's estates, the right to jury trial exists by express statutory grant for probate proceedings (SCPA 502 111), and by constitutional guarantee for proceedings that closely resemble those for which constitutional guarantee is unquestioned. Judicial proceedings with respect to a revocable trust would occur only after the settlor's death at the instigation o£ the settlor's distributees, as in a will contest. The substantial similarity between these instruments mandates the conclusion that the nature of the relief requested in a proceeding to set aside a trust is the same as the nature of the relief requested in a proceeding to set aside a will. Also, indorsing a distinction between wills and revocable trusts for purposes of the right to a jury trial would create a host o£ unproductive incentives and practical difficulties, particularly where the will and the trust were executed simultaneously and have the same provisions albeit by incorporation. Additionally, the factual questions and the evidence in all likelihood will be almost identical with respect to both instruments, a situation which may effectively allow for only one factual determination Finally, individuals preying on elderly or infirm people could subvert distributees' rights to a jury determination simply by utilizing a revocable trust rather than a will as a vehicle for their misdeeds.


Am Jur 2d, Jury, § 5l; Trusts, § 685.
Carinody-Wait 2d. Fundamentals of Practice in the Surrogate's Court § 149:171.

CLS, SCPA 502 (I).

NY Jur 2d. Decedents' Estates. § 1366; Trusts, § 202.

Annotation Reference
See ALR index under Jury and Jury Trial; Trusts and Trustees.

Mitchell E. Wilensky. Hauppauge, for proponent. Magdalen Gaynor. New York City. and Seth Rubinstein, Brooklyn, for respondent. Dennis C. Vacco, Attorney-General New York City (Robert Molic of counsel), for ultimate charitable beneficiaries. <*pg.7l7>

Renee R. Roth S.

At issue is whether there is a right to a jury in a proceeding to set aside a revocable trust created by a settlor who has since died.

Genevievc Tisdale died on October 6, 1995. Less than a year earlier, on December 15. 1994, Mrs. Tisdale allegedly executed two instruments, namely the revocable trust and a companion pour-over will. At testatrix's death, the value of the trust was approximately $2.1 million; the value of the probate estate was under $400,000.

The trust agreement provides for payment of decedent's estate taxes and expenses; makes dollar gifts ranging from $10,000 to $200,000 to various individuals, including decedent's distributees; and disposes of the balance of the trust assets to specified charities, an amendment to the trust, dated July 31, l995, changes some of the cash gifts. The will provides that the net estate, other than tangibles, is payable to the trustee of the cruse to be disposed of in accordance with its terms. The will goes on to incorporate by reference the terms of the trust in an effort to preserve those dispositions in the event the trust is found invalid.

The draftsman of both the trust and the will. Michael L. McDermott, is also the nominated fiduciary under each instrument. It is observed that Mr. McDermott, an Illinois attorney not admitted in New York, first met the then 86-year-old testatrix less than three months before she signed the instruments, raising the issue discussed in Matter of Weinstock (40 NX2d 1) and its progeny.

After the will was offered for probate, five of Mrs. Tisdale's seven distributees, all nieces and nephews, filed objections to probate and brought this proceeding to set aside the trust. With respect to both proceedings, the distributees demanded a jury trial on their objections concerning execution, capacity, undue influence and fraud. In particular, the distributees alleged that many of the charitable beneficiaries named in the trust reflect Mr. McDermott's intentions rather than the decedent's. For example, 25% of the trust remainder is distributable to Spring Hill College in Mobile. Alabama (Mr. McDermott's alma mater); 25% of the trust remainder is distributable to the Evans Scholars Foundation (Mr. McDermott is a trustee); 25% of the trust remainder is distributable to National Louis University located in the Chicago suburb <*pg-7l8> where Mr. McDermott lives; and $250,000 is distributable to Misericordia Home in Chicago. Objectants further claim that decedent was a "quintessential 'New Yorker' residing on the Upper East Side of Manhattan for most of her adult life".

Although it is clear that a probate contest may be tried before a jury (SCPA 502 [11), the availability of such a trial in a proceeding to set aside a revocable trust is an important issue, which has received little attention until recently (See. e.g., Matter of Aronoff. 171 Misc 2d 172). One of the reasons is that these instruments, used as substitutes for wills, though increasingly popular in a few jurisdictions, such as Florida, have not caught on in New York (see generally, Barnosky, The Incredible Revocable Living Trust, 10 J of Suffolk Acad of L 1). In large part, the interest in revocable trusts stems from a desire to avoid the court supervision of estate administration that occurs in some States that have adopted "common form" probate where interested parties either do not receive formal notice of the probate proceeding but have a period of time (usually several months) within which to appear and file objections or receive notice only after the will is admitted to probate, in which instance they also have a period of time to object to the instrument. States, like New York, where wills are admitted to probate only after notice to all interested parties in a formal proceeding ("solemn form" probate) do not require court supervision of estate administration and thus "avoiding probate" in such jurisdictions is not a particularly meaningful consideration. Therefore, absent special circumstances, revocable trusts in this State accomplish nothing more than wills.

The right to a jury in a civil trial in New York is either guaranteed under our Constitution or authorized by statute (SCPA 502 [1]; CPI.R 4101). The constitutional guarantee extends to: (1) all matters traditionally triable before a jury in a court of law (i.e., actions at law), and (2) matters for which a right to trial by jury was created by Statute through 1984 (NY Const. art T. § 2; see also. Hudson View 11 Assocs. v Gooden, 222 A02d 163; 7A Carmody-wait 2d, NY Prac §§ 49:1-49:5). Although the criteria for determining the right to a jury trial have been stated in several decisions (Matter of Carfield, 14 NY2d 251; Matter of Luria, 63 Misc 2d 675), their application continues to pose problems (see e.g., Matter of Sackler, 222 A02d 3; Connolly v Griffin, 201 AD2d 371; Matter of Grossman, NYLJ, Dec. 5, 1996, at 30, col 2; Matter of Springer, NYLJ. Oct. 20, 1994. at 26. col 3; Matter of Weinstein, NYLJ. Feb. 14, <*pg.7l9> 1991, at 26, col 1). Indeed, such difficulty has even resulted in opposite decisions by our appellate courts on this issue on identical facts (compare, Compact Electra Corp. v Connell, 46 AD2d 649 {2d Dept) [defendant's assertion of equitable counterclaims waived defendant's right to a jury trial on plaintiff's claims], with International Playtox v CIS Leasing Corp., 115 AD2d 271 (4th Dept) (defendant's assertion of equitable counterclaims did not waive defendant's right to jury trial on plaintiffs claims]).

In the context of decedent's estates, the only express statutory grant of a jury trial relates to probate proceedings (SCPA S02 111). However, the right to a jury trial also exists by constitutional guarantee for other proceedings that arise in the Surrogate's Court, such as discovery proceedings (a statutory procedure by which a fiduciary may seek to reclaim property on behalf of an estate [Matter of Wilson, 252 NY 1551) and reverse discovery proceedings (a statutory procedure by which a claimant may seek to reclaim property from an estate [Matter of Schneier, 74 AD2d 22]). Furthermore, the constitutional guarantee has historically been construed to extend to proceedings that closely resemble those for which constitutional guarantee is unquestioned (Matter of Wisniewski, 88 Wise 2d 76 [right to jury trial exists for proceeding against fiduciary similar to, but not strictly speaking, a reverse discovery proceeding]). This substantive rather than procedural approach effectuated the principle that the right to a jury depends upon the nature of the relief requested rather than the forum or the label of the proceeding (Matter of Garfield, supra; Matter of Luria. supra).

Although some cases have held chat a proceeding to set aside an instrument is equitable in nature and thus not triable by jury (Phoenix Mut. Life Ins. Co. v Conway, 11 NY2d 367; Dykman v United States Life Ins. Co., 176 NY 299), a proceeding to set aside a will may also be characterized as equitable in nature, and, as mentioned, is nonetheless triable by jury in New York (SCPA 502 [1]). However, to consider a revocable trust as a traditional instrument fails to recognize that it actually functions as a will since it is an ambulatory instrument that speaks at death to determine the disposition of the settlor's property. While alive, a settlor may amend his or her revocable trust (as Mrs. Tisdale did in this case) just as he or she may change his or her will, without resort to the courts for equitable relief. Significantly, judicial proceedings with respect to a revocable trust would occur only after the settlor's death at <*pg.720> the instigation of the settlor's distributees, exactly the situation that arises in a will contest. Furthermore, the factual issues presented in such a proceeding are the same as those presented in a proceeding to set aside a will.

Clearly, a revocable trust has little in common with instruments other than wills. Although such trust is established in the form of an "agreement", it is really unilateral in nature because the negotiation that characterizes bilateral instruments is totally absent. The trustee of a revocable trust (it not the settlor) simply acts at the behest of the settlor. If the settlor becomes dissatisfied with the trustee or with the terms of the trust, he or she simply amends the trust to suit his or her desires. There is no need to invoke the equitable powers of the court to relieve the settlor of a bilateral obligation because there is none.

The substantial similarity between revocable trusts and wills (and the illusory concept of a revocable trust as a contract) mandates the conclusion that the nature of the relief requested in a proceeding to set aside a trust is the same as the nature of the relief requested in a proceeding to set aside a will. This alone requires the court to recognize the right to a jury trial in the instant proceeding in order to comply with the above-mentioned long-standing rule that the nature of the relief requested, rather than the forum or the label of the proceeding, determines the right to a jury (Matter of Garfield, cupra; Matter of Luria, supra). The relatively recent use of revocable trusts as substitutes for wills explains why this issue was not addressed earlier. As a result, there is uncertainty (see, Matter of Aronoff, supra [with which Chic court respectfully disagrees]) and therefore legislation on this point is suggested.

It is further observed that a proceeding to set aside a revocable trust is like a discovery proceeding in that the relief sought is recovery of estate assets allegedly.

© 1998, Alexander Treadwell, Sec of State, State of New York

Administration Proceeding Presumption of Death [Top]

Surrogates's Court: Suffolk County
Proceeding for Letters of Administration, Estate of: Trent Schembri, Deceased
By: Hon. Ernest L Signorelli, Surrogate
Date: April 23, 1979
File: 736 A 1978

This is a proceeding for letters of administration involving a 16 year old decedent whose death is alleged to have occurred on July 27, 1978, by drowning.

A hearing was held on April 2, 1979 and from the evidence adduced, it appears that the alleged decedent was a resident of Lake Ronkonkoma. Suffolk County, New York. On July 27, 1978, the alleged decedent, with three other people, went fishing in a 27 foot boat owned by one of the other passengers. While the boat was in Shinnecock Inlet it was met by 7 foot seas and winds of 14-16 knots. A wave hit the boat and knocked three of the passengers, including the alleged decedent, into the water. The remaining passenger saw all three in the water and thereafter they disappeared. The Coast Guard arrived and rescued two of them, but were unable to locate the decedent although a thorough search was conducted. The court finds that his death is presumed to have occurred by drowning on July 27, 1978, and that he died intestate. The guardian ad litem for the alleged decedent concurs in this determination. All interested parties have consented that a bond be dispensed with.

Accordingly, letters of administration shall issue to petitioner upon qualification and the court dispenses with the filing of a bond.

Settle decree on notice

Ernest L. Signorelli, Surrogate

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