Most of us write down our wills and think our job is done. We think that with some basic estate planning we’ve ensured that our possessions will be passed down safely after our demise.
But sadly, it’s not always that simple.
Statistics show that every year about 0.5 to 3 percent of wills are contested in the US. So even if your will is properly signed and witnessed, there is still a chance for it to be contested.
Here are a few of the most common reasons wills are contested.
The Will’s Creator Is Suspected to Have Been Influenced
Testamentary capacity is very essential when creating a will. This basically means that the person creating and signing the will needs to be an adult with normal mental capacity. This essentially implies that the creator needs to be old and sane enough to understand their actions and what the will implies.
The testator needs a thorough understanding of not only their own assets and the value of their estate but also the role their will plays in distributing it. Moreover, they need to understand who they’re signing off as beneficiaries, and so on.
If there’s any valid doubt on the deceased person’s mental capability to create the will in question, then the will can be contested.
The Will Is Incomplete
The will can be considered incomplete on two conditions. Firstly, if it has technical issues like an improper number of witnesses, missing signatures, or isn’t formatted correctly (based on the state’s laws).
But the will is also incomplete if it hasn’t been updated. After every major event in your life, your will needs to be re-evaluated and revised accordingly.
Getting married, divorced, having or adopting children, or acquiring a large amount of inheritance or real estate are all occasions that require you to update your will. Failing to do so can result in the will being contested after your death.
The Will Contains Fraudulent Terms
Wills are most often contested when there are doubts about how genuine they are or whether they’ve been tampered with in any way.
For instance, someone may have reason to believe that the signature on your will isn’t authentic. Or it may look like parts of the will have been crossed out or removed without authorization. Or perhaps, you’ve mistakenly added a faulty clause or an invalid request. There may even be evidence that points toward you being influenced by a family member while writing the will.
And even if your will is 100 percent genuine, at that point there’s little you can do, since you’re probably in a coffin.
So, to make sure your will is legally correct and as accurate as possible, you need an estate law attorney to help you out.
In New York, probate is necessary for assets solely owned by the deceased and haven’t been legally bequeathed to a designated beneficiary. This means that if the property owner passes away without a written will, the probate court will distribute the estate according to the state laws. However, if the property holder leaves behind a will that stands uncontested, the probate has a limited role to play.
What Are Probate And Non-Probate Assets?
Assets that can go through probate include solely-owned bank accounts, vehicles, antiques, cash, art pieces, and jewelry. On the other hand, non-probate assets include:
Any bank accounts with named beneficiaries.
Life insurance policies with named beneficiaries.
Jointly held real estate.
Assets held in a trust.
Probate may also not be necessary if:
The total value of the estate is not big.
The estate only comprises non-probate assets.
The deceased left behind an estate plan to avoid probate.
A Quick Look at the Probate Process
Here is the process that follows:
The executor starts off the process by filing the probate petition. For this, they need a copy of the deceased’s death certificate and the original will. Both of these documents need to go to the Surrogate’s Court of the County, where the deceased individual last lived. The exact filing fee depends on the total size of the estate.
The next step is to itemize the inventory. The executor will collect the deceased’s physical and non-physical assets and appraise them as of the date of death.
The executor will also use the estate funds to pay any outstanding debts, liabilities, and taxes. If the estate doesn’t comprise enough cash, they might need to sell one of the assets.
The next step is to notify the distributees (legal heirs). The formal notice is called a citation, which also goes to the Surrogate’s Court. The estate is then distributed according to the Surrogate’s Court Procedure Act (SCPA) and the Estates Powers and Trust Law (EPTL).
Other than this, probate law also involves matter related to contesting a will, spousal rights, estate planning for blended families, and administration of a trust. If the process sounds overwhelming, try seeking help from a well-experienced probate attorney.
There is no better option in Brooklyn than The Law Offices of Joseph A. Ledwidge, P.C. Joseph Ledwidge attorney himself has around 20 years of experience in dealing with complex estate matters.
Try us out. We also offer services in Queens, Manhattan, and Jamaica.
New York residents may have spent time thinking about creating an estate plan. When doing so, there are certain issues to consider that may make a plan easier to execute. For instance, it is important who is named the executor of the estate. This person should be fair and objective about carrying out the wishes of the deceased individual.
However, this could be a moot point if there is no valid will in place prior to an individual passing away. In this scenario, the state may decide who gets an individual’s assets. If a will does exist, it should clearly state who gets an item and why. Forcing family members to figure it out on their own could result in frayed relationships and legal battles between family members.
In the event that minors are to be gifted money, it may be better if there are rules attached to how that money is to be given. Furthermore, all valuable possessions should be inventoried prior to creating a will regardless of who is getting an item. Doing so may make it easier to ensure that the beneficiaries get what they want. Doing so might also help a grantor to fully evaluate the size of their estate , which can help limit excess taxation when the items transfer ownership upon death. In cases where this is not done properly, family members may have to sell items to pay the taxes on their value.
To increase the odds that an estate plan meets an individual’s needs, it may be a good idea to review that plan every whenever a major event takes place. This may be done with the help of an estate planning attorney. An attorney may also be able to draft the necessary documents for passing on assets if a client is in the beginning stages of creating an estate plan.