BAEC Bulletin May/June 2023 | 31
Appellate Division that petitioner failed to raise a triable issue of fact in response to respondents’ prima facie showing of entitlement to summary judgment. Judge Troutman dissented in an opinion in which Judge Rivera concurred: The power of attorney authorized decedent’s attorneys- in-fact to act in accordance with decedent’s instructions or in his best interest. To overcome the presumption that their caregiving services were provided out of love and affection, which presumption respondents concede applies here, and to demonstrate that the attorneys-in-fact acted within their authority under the power of attorney, respondents were therefore required to demonstrate that the attorneys-in-fact were compensating them for their caregiving in accordance with decedent’s instructions or were otherwise acting in decedent’s best interest. Respondents demonstrated that a majority of the attorneys-in-fact, which majority included respondent Philip Maika, intended to compensate respondents for their caregiving. But respondents did not demonstrate that decedent himself intended to compensate respondents or that such compensation was in decedent’s best interest. It was wonderful that Philip and Anne rendered services that permitted their father to spend his final years in his own home, rather than in a nursing home. But, it is hard to justify the conclusion of the majorities in the Appellate Division and the Court of Appeals that Philip should have been permitted to act as Attorney-in-Fact in voting on an issue in his own favor. Self-dealing is self-dealing. Without Philip’s vote, there can be no transfer.
determined that the filing of a verified claim against the estate constituted the commencement of a special proceeding which tolled the statute of limitations. Since the claim was not rejected within the 90-day statutory period contained in SCPA 1808, the FCU as a creditor can compel the executor to account, regardless of the lapse of time. Revenue Ruling 2023-02, Internal Revenue Bulletin 2023-16 (April 17, 2023) Some commentators have claimed that assets contained in a trust which is considered a Grantor Trust under sections 671-78 of the Internal Revenue Code, are entitled to stepped-up basis upon the Grantor’s death, even though the trust assets are not included in the Grantor’s gross estate for estate tax purposes. This Revenue Ruling drives a stake through the heart of that contention. The Ruling holds that Section 1014 of the Internal Revenue Code does not apply to “step-up” the basis of assets gifted to an irrevocable grantor trust by completed gift in cases in which such assets are not included in the gross estate of the owner of the trust for Federal estate tax purposes. In such cases, even though the grantor trust’s owner is liable for Federal income tax on the trust’s income, the assets of the grantor trust are not considered as acquired or passed from a decedent by bequest, devise, inheritance, or otherwise within the meaning of § 1014(b), and therefore § 1014(a) does not apply.
Matter of Grew, 77 Misc.3d 1236(A) [Surr. Ct. 2023]
Some things do not get better with time.
Decedent died in 2012 with an outstanding credit card debt to the WNY Federal Credit Union (FCU). The FCU sent a Creditor Claim to the Executor by certified mail March 16, 2015. Thereafter the FCU filed a “Claim Against Estate” in the Surrogate’s Court. The estate never rejected the claim nor did it file a petition to settle the estate. In November 2021, about six years after filing its initial claim, the FCU filed a petition to compel the Executor to account.
The Executor asserted the claim should be denied on statute of limitations grounds (CPLR 213[2]).
Surrogate Judge Mosey, in a very complete opinion,
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