Court Bonds

Undue Influence?



Some Trust and Estate lawyers are observing a rise in claims of undue influence related to the affairs of decedents who suffered from dementia. The recent Matter of Varrone from Surrogate’s Court in Queens County New York offers important take-aways.

 Deposition of the Trust and Estate Lawyer    

JD Supra reports that in the Matter of Varrone, the close, personal supervision of the preparation and signing of the documents, by the Trust and Estate lawyer was a critical factor impacting the judgment:

Disappointed siblings challenged the will and deed as the product of undue influence by John, who lived with their mother, noting the mothers diagnosis of mild dementia” around the time in question.  In dismissing the claim on summary judgment, the Surrogate gave great weight to the deposition of the T&E lawyer who prepared the will and the deed.  The lawyer testified that he prepared the deeds and accompanying transfer documents at decedents behest; that he discussed the transactions with the decedent; [and] that he personally supervised their execution on the days in question ….  [He] testified repeatedly that decedents main objective was to ensure that [John]–who lived with her, assisted her, and was without a spouse and children of his own–had a place to live, and would not be thrown out of the house.”

 Noting that mild dementia is not incompatible with capacity,” the Surrogate again pointed to the T&E lawyers deposition testimony.  “Adequate evidence of decedents mental capacity at the relevant times was demonstrated by the disinterested witness testimony of [the attorney] who oversaw the execution of the [documents] and stated ‘there was nothing … that gave me any inclination that [decedent] didnt know what she was signing or doing.”

Good To Know: Fiduciary Obligations and Bonds

In New York, the person responsible for distributing the property of the deceased is known as an Executor if there is a will, and an Administrator if there is no will. In either case, the individual has a fiduciary obligation. As New York Courts explains:

This means that they have a legal duty to act faithfully towards the estate and not put their interests ahead of that duty….Fiduciaries are responsible for protecting the property until all debts and taxes are paid and to promptly and efficiently administer the estate.In general, fiduciaries have three responsibilities:

  • Collect, inventory, and appraise all the assets of the estate.
  • Pay the bills, taxes, estate expenses, and creditors of the person who died.
  • Transfer property according to the Will or, if there is no Will, then according to the law.

 The Surrogate’s Court may require that a fiduciary be bonded before they are appointed. A bond is issued by a surety company and it acts as an insurance policy that provides security of the estate’s assets.

When a fiduciary bond is required, in New York—or any state of the country—let national expert, Colonial Surety help. We are a direct, digital provider of a full portfolio of fiduciary bonds, and make it quick and easy to quote, purchase and even e-file them, from anywhere, in minutes. Obtain a fiduciary bond now, right here.

An Ounce of Prevention?

Sometimes the proactive communication of intentions and expectations in families can be key to avoiding probate litigation. The preparation of a letter of instruction can be a helpful way to express and document the intentions behind decisions made in a will or trust. Though not a legal document, a letter of instruction can be useful if grieving family members find themselves wondering about the arrangements made for the estate.

Similarly, legal experts advise documenting gifts.

Trust and Estate Law? Partner Up

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