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!
According to Forbes, the COVID-19 crisis has forced US citizens to consider estate planning more seriously. As the crisis’s volatility continues to impact our everyday lives, wealth transfer has become more common.
Before you get down to business and start writing your will, here are a few problems that you might face in New York:
Will Contests
A will contest is a legal effort made to invalidate a will. Anyone can contest a will if it’s believed to be procured by fraud or forgery. You can also challenge a will if you have reasonable grounds to believe that the testator lacked the mental capacity to write a will or was made to sign it under duress. A will can also be invalidated if it’s outdated, and a more recent version of it exists or if it isn’t compliant with the state laws.
However, you can’t contest a will just because you don’t like its provisions and terms. Other than that, you also must be directly affected by its outcome to challenge it. A legal heir or a beneficiary can only contest the will. After a will is successfully contested, the court invalidates the entire will, instead of a single provision.
In either case, it’s not easy to contest a will because the entire process also translates into court expenses. Only an experienced probate attorney can simplify the process for you.
There Is No Written Will
This shouldn’t surprise you. 68% of Americans currently don’t have a written will. Dying ‘intestate’ will only complicate the matters for their surviving descendants. According to the state laws, when someone dies without a will, the court decides how the estate will be distributed.
When a New York resident dies without a will and no children, the surviving spouse usually inherits the estate. If there are more legal heirs, the surviving spouse only gets $50,000, and the rest is divided among the descendants. If there is no spouse, the entire estate is inherited by the descendants.
This is a problem because you might not want your estate to pass on to your surviving spouse, especially if you’re not on good terms. A large number of Americans prefer leaving their estate to charities. Your wishes will only be honored if you have a written will.
The Executor Isn’t Carrying out Their Duties Well
An executor is the individual chosen to oversee the probate and honor the deceased’s wishes. Your chosen executor can step down from the role or choose not to have a say in how the estate is distributed. This usually happens when they take upon the duty without realizing the gravity of the responsibilities and pull out later. In this case, the court will check if you name a successor executor. If there isn’t one, the judge will appoint an estate administrator to carry out the probate duties.
With the right probe representations, none of these problems are too big. If you’re based in Brooklyn, Manhattan, or Queens, The Law Offices of Joseph A. Ledwidge, P.C. can help you out! Joseph Ledwidge Attorney has around 20 years of experience in helping clients deal with complicated probate cases. Reach out for a free consultation.
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.
Retirement accounts.
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.
If you believe a will isn’t valid, you may be able to
contest it. This means challenging it after it’s submitted to the court for
approval.
It’s important to know that a person can set up their
will in any way they see fit, even disinheriting their relatives if they wish. A
will is presumed to be valid unless proven otherwise.
However, even if the person who created the will (the
“testator”) took all the appropriate steps to create it, the will doesn’t
become a legal document until after they die. In most cases, the will must
still go through the New
York probate process to be proved valid by the county Surrogate
court.
Who Can Contest a Will?
Anyone who is affected by a will can challenge its
validity after it’s submitted to the court for approval. Contesting a will can
be a complicated, costly, and time-consuming process, so it’s not to be taken
lightly.
Here are a couple of hypothetical examples in which
someone might contest a will:
A child who would have inherited more if
there had been no will. According to New York state law, if a person dies without
a will, the surviving spouse (if there is one) will automatically receive
$50,000 plus 50% of the estate balance. The children inherit everything else.
So, if there are two kids, they would each receive 25% of the remaining balance
of the estate. Now suppose the parent who died left a will indicating that one
sibling should only receive 10% of the estate. If no will had existed, that
sibling would have gotten 25% of the estate. In this case, the sibling might
choose to contest the will.
A wife who believes her husband (the
testator) created a will under conditions of undue influence. Suppose the
husband’s sister threatened to never let him see his favorite nephew again if
he didn’t write her into his will. To avoid being cut off from his nephew, the
husband leaves half of his estate to his sister, even though that’s not what he
wanted. In this case, the man’s wife could contest the will.
Grounds for Contesting a Will
Under New York Law, you can contest a will based on the
following grounds:
Lack of mental capacity: Someone can
claim that the testator was not of sound mind at the time they made the will.
The person contesting the will must prove that the testator didn’t understand
what they owned, who their relatives were, or what was in their will around the
time the will was created because of a cognitive impairment, such as dementia;
a mental illness, such as depression or schizophrenia; or another factor, such
as being on a mind-altering medication. Obtaining the testator’s medical
records can help strengthen the case.
Lack of validity: Someone can claim the
testator didn’t follow the proper protocols for creating a valid will. In New
York, this includes signing the will at the end of the document and having it
signed by two “disinterested” witnesses, among other requirements.
Undue influence: Someone can claim the
testator only made the will because they were influenced by a person (e.g., a
family member, a friend, or someone else) to divide their property in a way
that went against their wishes.
Duress: Someone can claim that the
testator only made the will because they were under threat or extreme pressure
to divide their property in a way that went against their wishes.
Fraud: Someone can claim the testator
only made the will because another person lied to them, thus influencing the
way they divided their property.
The Process of Contesting a Will
Unfortunately, it’s not all that uncommon for a
caregiver, friend, relative, or someone else with ulterior motives to take
advantage of a person with cognitive or physical impairments—in fact, it’s one
of the most common reasons wills are contested. If you believe someone took
advantage of you or your loved one with a will, you may be able to overturn it
with an attorney’s help.
Your attorney will file a claim to overturn the will with
the court, along with any supporting documentation. The court will decide at
trial whether the will is valid. Until the trial is complete, the executor may
not distribute the estate. If the court finds the will to be invalid, they will
either:
Throw out the will
Admit only a portion of the will
Admit an earlier will in its place
Not admit any existing wills and instead
distribute the estate’s assets among the deceased person’s relatives in
accordance with the laws of New York.
If the court finds there is no valid will, the assets
will be distributed as follows:
If there is a spouse, and no children, the
spouse receives 100% of the estate.
If there are a spouse and children (biological
or adopted), the spouse receives $50,000 plus half (50 percent) of the estate
balance; the children inherit everything else (if there are two children, each
would receive 25 percent of the remaining balance, for example).
If there is no spouse but there is a child or
children, they will receive an equal distribution of the estate; if there are
two children, for example, each will receive 50 percent.
Adoptive children have the same inheritance
rights as biological children.
Stepchildren are not entitled to receive
anything from the non-biological parent’s estate (but they will inherit from
their biological parents).
Get Legal Help Contesting a Will
Hiring an experienced attorney to help you contest a will
can greatly improve your chances of a favorable outcome.
Joseph A. Ledwidge PC is an expert New York estate
attorney representing executors, heirs, beneficiaries, fiduciaries, and other
interested parties. He and his associate counsel have 32 years of combined
experience. If you entrust us with your case, we’ll plead every possible ground
for a will challenge.
Your loved one passes away and you get a copy of the will. Right away, you can tell that something isn’t right. You don’t think this will should stand. You want to contest it and fight for your rights as an heir.
But can you do so? Do you actually have the proper legal grounds to go to court? Or do you just have to abide by the will, even when you do not think that it accurately portrays your loved one’s wishes? This is already an emotional time for you and your family, and now this legal confusion makes it that much more difficult to move forward.
1. Undue influence impacted your loved one’s decisions
In other words, their decisions were not really their own. The will does not reflect what they wanted, only what someone else influenced them to write down.
For example, perhaps you have an older copy of the will in which you received far more of the estate. Right before their passing, your parent changed the will to give more of the estate to a step-sibling, whom you never got along with but who lived closer to your parent. You think that they convinced them to make the change by manipulating them in the fragile time near the end of their life.
2. Your loved one drafted the will without testamentary capacity
This is often a problem for people with dementia and other mental disorders. They may no longer have the mental capacity to understand what the will means, what assets they control or even what papers they are signing.
This could be related to the manipulation discussed above. Perhaps your step-sibling waited until your parent no longer understood the legal process and then convinced them to move assets out of your name. They never wanted to do this and didn’t even understand that they did.
3. Your loved one only signed through fraud
The extreme end of the example noted above is when someone uses fraud to get an elderly person to take an action they don’t know they’re taking. They can do this by lying directly.
For instance, maybe your step-sibling altered the will and then brought it to your parent. They told them it was a simple medical form they needed to sign for the hospital. They did it, trusting that person. However, they got tricked into signing an altered will that they’d never seen.
The possibility of a nasty court battle over a last will and testament motivates some people to stick a “no contest” clause into their wills. If anyone is going to step forward to contest the will, the no contest clause will specify that the contesting individual will be cut out of the will’s provisions. While this seems like a good way to dissuade beneficiaries from going to court over a will, New York law might not uphold such clauses in all cases.
No contest clauses might seem unfair at first glance since they present an all or nothing proposition, and if a person finds fault with the will, that person could lose out completely on the benefits of the will by contesting it. FindLaw states that for these reasons, many states will not enforce such clauses and will allow people with standing to contest wills if valid reasons exist to do so.
New York law, however, is quite specific, stating that no contest clauses are valid in the state. A testor does not need to provide a beneficiary with any alternative benefits if the beneficiary contests the will. Also, it does not matter if a beneficiary has a probable cause to contest the will. The no contest clause can still take effect and disinherit the person for contesting. However, this is not true for all cases.
State law does provide specific exceptions that bar a person from being disinherited. For instance, the contesting individual may only be claiming that the will is not being offered in the correct jurisdiction and is not challenging the provisions of the will. A challenger may also not be competent under the law to make the challenge in the first place and thus cannot be held responsible. State law provides this exception to infants as well.
People may also suspect that there is something wrong with the will itself, perhaps believing that the will is not even legitimate. State law permits residents to challenge wills if they are forgeries. A will might also have been superseded by a later will but the earlier will was wrongly put into effect, which can also form the basis for a legitimate challenge.
Additionally, a no contest clause cannot be used to coerce people to not engage in legitimate probate actions. A beneficiary may have documents or information that are relevant to a probate proceeding but the testor of the will might not want to come to light. Regardless of the testor’s wishes, a person cannot be disinherited for bringing these documents forward. A person also cannot be disinherited for not participating in a petition to put a document through probate as a last will.
While creating an estate plan is a wise move for any adult living in New York, many people fail to take important steps to plan for their futures and get their affairs in order until they are old or in particularly poor health. This can prove problematic, however, because in some cases, other people take advantage of older Americans who they believe they can easily influence, and they may exploit the trust of an aging American if they think doing so would be to their benefit. At Joseph A. Ledwidge, P.C., we understand that undue influence is a common reason courts may deem a will invalid, and we have considerable experience helping others with similar concerns pursue solutions that meet their needs.
According to the American Bar Association, undue influence, although somewhat difficult to define, refers to someone’s efforts to manipulate someone else for his or her own personal gain. While undue influence can affect virtually anyone, those with memory loss and related issues are particularly vulnerable to this type of treatment. Older Americans, for example, may find that others exploit them for their own financial gain, and those responsible for doing so may try to isolate the victim in an effort to better protect themselves from detection.
Deciphering between undue influence and simple persuasion can prove difficult, however, so many judges and juries consider certain factors when determining whether undue influence is at play. For example, a judge or jury will likely consider the vulnerability of the victim and the degree of authority the influencer has over this person when determining whether someone experienced undue influence.
Judges and juries may also consider the tactics used by the influencer, and the results of the influencer’s behavior, before making final determinations about undue influence. You can find out more about this and other common reasons for contesting wills by visiting our webpage.
New York law allows people who write a will to name an executor. This executor would take care of the estate after the testator passed, but you as a beneficiary or interested party may not always be happy with the way this happens.
Your first course of action would probably be to speak with the individual about their performance. Many executors are not experienced in the capacity, so they could see criticism as a way of improving and therefore making the probate process more efficient. If someone did not respond to your polite inquiries, or if you believe they were engaging in some sort of malfeasance or malicious action, you could act on those grounds to dismiss that individual from the executor position.
Attempting to remove someone who is responsible for administering a will as it goes through the probate process is, as you might imagine, not a simple matter. This is due in part to the court’s general assumption that the testator already assessed and approved the abilities of the individual named as executor.
Complications may also arise from the specific points in the New York consolidated laws procedural rules that allow for removal of executors. In fact, the New York codes specify 12 specific situations in which you might have grounds for such a removal.
Probate is a complex process. Not everyone has the qualifications or the ability to perform the fiduciary and actual duties required of an executor. However, you would probably need to establish evidence of the specific ways in which you found your executor unsuitable for the rigors of his or her position before having any chance of removal. This is not legal advice. It is only general educational information.
