The word probate refers to the official validation of a will, but the word only describes a few of the duties that a probate lawyer takes on. Here’s a rundown on some of the most essential services that a probate lawyer offers:
Will and Trust Preparation
Everyone wishes to leave behind something for their loved ones after they pass away, so that they can live a good life in their absence. Amassing wealth and assets are not enough however, as you need a proper will or trust to ensure that the right person gets their fair share. With multiple heirs and beneficiaries, you may have your own terms as to give what to whom.
If you don’t have a will that specifies the exact terms and conditions, the laws of intestacy apply, which might not be inline with what you want. A probate lawyer helps draft a detailed will or trust for you.
Probating A Will
The process of validating a will with supervision from the court is known as probating the will. Initially, you have to file the will along with a probate petition in court. The court will go over the documents thoroughly to check for any errors that could lead to the will being rejected.
Then, an executor of the estate will be appointed, who will be responsible for paying off any creditors or debts of the estate as specified after the appraising all of the assets. The executor will also take care of paying off any beneficiaries or rewarding them as per requirement.
Contesting A Will
Often, people feel that they have been unfairly treated in a will. In other cases, they may have substantial evidence which could lead to a will being null and void. In such cases, a probate lawyer helps skillfully navigate in such situations.
They can get particularly upsetting as they pit family members against each other, which requires the help of an expert negotiator and litigator to get around. Rather than cause more negative feelings, the goal is to reach an amicable conclusion.
At Ledwidge and Associates we specialize in probate law, helping with the various issues related to probate law, helping our clients get their due rights, assign executors and properly leave behind their estate for their loved ones. Reach out to the business today if you seek a probate law or litigation lawyer.
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.
Most people have their legacies, properties, and assets on their minds when drafting their Testament and Last Will. But several other things must be considered and specified in an estate plan.
For example, specifying what happens to your outstanding debts or those of a loved one after they pass away is crucial. If you owed a loan or debt in your lifetime, your family will be responsible for paying for it, depending on your estate’s size and value and the type of the loan.
Is it important to notify creditors?
After a person passes away, their estate executor is responsible for informing the person or institution that provided the debt. While the trust doesn’t mandate that the executors notify the creditors of the debtor’s passing away, doing so will allow the creditors to come forward within a shorter period, and the payment process will be smoother. Once the creditors are notified, they are given a specified period to claim their takings against the estate. Each creditor will be paid for their part from the estate’s proceeds.
If the deceased person didn’t create an estate plan during their lifetime, the probate court then assigns an administrator, who is typically from the immediate family or a close relative. Like a trustee or an executor, an administrator appointed by the court is also authorized to pay the deceased person’s debts from the estate’s takings.
What if two persons are responsible for debt?
In most mortgage cases, couples usually apply together. In this case, the surviving spouse or loan co-signer will be responsible for paying the debts. However, the probate court considers several factors before determining that the living partner should be paying for the joint debts. In some cases, selling the estate is enough to repay all the deceased’s outstanding debts, while in others, loan providers may settle on an amount lesser than the original debt.
A loved one’s death isn’t only emotionally turbulent, but it often also brings complicated financial and legal issues with it. An experienced and reliable probate attorney Queens or probate attorney Brooklyn can help you through each step of the process, from contesting and probating the will to removing an executor or administrator, ensuring complete protection of your rights.
If you’re looking for an experienced probate attorney in Brooklyn, Queens, Manhattan, or other NYC areas, get in touch with the law office of Ledwidge & Associates, P.C. today!
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.
Contesting a will is something you may need to do if your parent passes away and everything isn’t as you expected. For instance, if you had previously been the main heir to your parent’s estate and now it’s going to someone outside the family, that could draw some red flags. If you’re not sure that the will was changed appropriately, you can contest it. Here are a few things you need to know.
Establish legal grounds
The first thing you need to do is to establish that you have legal grounds to contest the will. One reason you might have is if you think someone influenced your parent in a way that was not fair to the family. For example, if your mom had dementia, a caregiver might have asked her to sign something when she didn’t understand what she was doing. This may also constitute fraud.
Improper execution is another claim you can make in court. It means that the will was not prepared correctly under the laws of the state, so it should not be upheld. A lack of capacity is the final item you can claim if you want to contest a will. If you claim your parent had a lack of capacity, it means that he or she was unable to make decisions at that time due to mental illness, disease or other causes.
Expect to pay some money
Contesting a will does cost money, and it may be worth looking into how much it will cost you to see if it’s worth the battle in court. It may not be worth pursuing the claim if you’ll lose money even if you win, for instance. Your attorney can talk to you more about the possibility of not only winning a case but what would happen if you lose.
Understand what you are getting into
With the right documentation, making a successful claim is possible. Wills, when created legally, are binding, but you have the right to contest one if something doesn’t seem right. Make sure your claim is a result of actual wrongdoing, and not one of sibling rivalry. You need to document everything you can to show that someone took advantage of your mother or father to prove your side of the case and to get the court to overturn the will. Video evidence or witness testimonies could help.
This takes time, and it can cause a rift in families if no wrongdoing took place. Be careful about what you choose to pursue if you don’t have evidence.
Many individuals believe that simply the act of writing a will and getting it notarized will allow peace to reign amongst family members after the testator has passed on. Yet in many cases, this couldn’t be farther from the truth, as it only sets the acrimonious process of probate in motion.
Consider a case where a parent with three adult children dies. One is relatively well-off and would like to preserve the family home, which is located along the shore. He envisions sharing the property with extended family for years, then eventually selling, and all of the siblings pocketing a handsome profit from the eventual sale decades later.
The middle daughter is married to a teacher, and they have three kids who will soon be facing college tuition bills. She is more inclined to sell, but can see the wisdom of waiting for a more robust housing market and likes the lure of a summer home by the shore as well.
The youngest son, however, has very different ideas. He’s got fire in his belly to jump on the start-up craze for the brain-enhancing chemicals market and needs some fast cash to make it happen. He’s jumped from job to job all his life and lived paycheck to paycheck. The only thing he cares about is getting his cut from the sale of his parent’s house.
What you now have is a scenario where, at best, it will become a two-against-one battle, and at worst, a three-way tug-of-war, as each sibling strives to achieve his or her own means to the end. No parent wants to be responsible for causing such rancor and chaos among family members.
Put your assets in a revocable trust instead
To circumvent the probate process and maintain some semblance of control over your estate, a revocable trust is one option to consider. This is a type of contract that establishes an entity – the trust itself – where your assets will be titled in your name during your life. You then appoint the trustee of your choice to manage the trust after your death, which assures that you can hand pick someone who will honor your wishes.
A trust is certainly not your only option, and your family circumstances and financial picture will dictate the best possible estate planning scenario for your unique needs. Those who would like to learn more can contact an estate planning attorney to answer any questions.
As regular readers of our Queens probate and estate administration law blog know, we regularly cover topics that involve disputes over wills. In some cases, those disputes will include what is known as a will contest .
Here in New York, anyone who is affected by a will can challenge the will. The New York City Bar Association notes that there are a number of reasons for will contests.
One reason cited in will contests is that the person who made the will was not of sound mind at the time the will was written. In general, this means the person was unable to understand the practical effects of the will.
Another reason for challenging a will is that not all proper procedures were followed in the making of the document. Examples of this would be that the will was not signed or witnessed.
We have all undoubtedly read of another will contest reason: undue influence. This circumstance can come about when, for instance, an elderly person comes under undue influence from a caregiver and writes a will that excludes their children in favor of the caregiver.
Duress: this situation involves “extreme pressure” exerted to make the person write a will that divides property against their own wishes.
It can be difficult to successfully contest a will. The process often puts family members on opposite sides of the dispute.
In some situations, a skilled negotiator can craft an agreement that resolves the matter. In other cases, litigation is required.
A skilled, experienced Queens attorney can help you achieve a favorable outcome in your situation. A confidential discussion of your circumstances with attorney Joseph Ledwidge can help you choose and pursue your best legal options in these matters.