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.
The passing of a relative can be difficult, especially if you’re close to them. Even if you aren’t on the best terms with them, there are certain responsibilities and affairs that you might have to look into, especially those related to the estate left behind.
Here’s how you can deal with the legal issues that take place after a person’s passing and a probate lawyer’s assistance in the process:
Legal Pronouncement of Death
Suppose your relative has passed away at home and unexpectedly. In that case, you have to call in a medical professional before you declare their death. If they’re under hospice care of a nurse, the nurse can perform this job.
You don’t have to worry about dealing with the declaration if your loved one passes away in medical attention at a hospital. The hospital workers will handle all of that for you. A declaration of death is essential so that you may proceed with the funeral and other legal proceedings.
Consult an Attorney
After getting done with funeral proceedings and grieving, head to your attorney with any details you have regarding the finances of the deceased. You don’t have to worry about the documentation too much; a capable probate attorney will go through them for you.
It’s best to resolve the situation immediately, determining whether the probate process is required at all and if there are any potential problems or issues involved in the documentation.
Filing as An Executor
A family member of the deceased will become the executor of the estate, carrying out several duties on their behalf. You’ll have to inform all involved heirs, beneficiaries, and creditors of the estate regarding the change in executors, along with the distribution of their respective assets and properties.
In case of any debts and dues left behind by the deceased, those are your responsibilities as well.
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.
New York residents who have survived their spouses often have questions about their rights to inherit part of their spouses’ estates. Although New York is a common law state, a surviving spouse still has rights that entitle them to part of their deceased spouse’s estate.
Because of the rules of property ownership in New York, the spouse of a deceased person is not necessarily entitled to half of that person’s estate. The person whose name is on the title of a piece of property is its legal owner, even if that person’s spouse actually paid for it. For property that is not associated with a title, the person who paid for the item is its owner. This means that each spouse in a marriage does not necessarily own half of the property acquired during the marriage.
Although it is a common law state, New York law disallows people from completely excluding their spouses from their wills. Residents of New York are entitled to one-third of their deceased spouses’ estates. This mandate is even applicable in cases where a deceased person left less than one-third of their estate to their spouse. A spouse who was excluded from a will or who received less than one-third of the estate may take the case to court to claim their share. If the spouse does not make a claim with the court or if they consented in writing to receive less than one-third of the estate, the deceased person’s property will be distributed as indicated in their will.
People whose spouses are deceased often have difficulty maintaining their standard of living without their full share of their spouses’ estates. Attorneys may be able to advise surviving spouses on how to make a claim to an estate even if their spouse excluded them from their wills.