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Will Challenge

Tuesday, March 6, 2018

Was your aunt unduly influenced by her neighbor when she transferred her house to him?


Issue of undue influence comes up often in the context of contested probate proceedings. A relative dies, and when the heirs start going through the estate of the dearly beloved, it turns out that there is not much left. Apparently 3 months before her death the aunt transferred her $2MM Manhattan apartment to a next door neighbor. And she named that same neighbor as a beneficiary on her $1MM IRA account and on her $500K life insurance policy. The question then arises – were these transfers made out of free will or were these the result of undue influence?

Undue influence requires a finding that a person was restrained from acting independently, or was constrained to do that which was against her free will and desire.
Read more . . .


Thursday, February 15, 2018

Spell the name of the Witness to Your Will


In New York, every Will must be witnessed by at least two witnesses. When the Will gets probated in Surrogate Court, the names of the Witnesses must be listed on the Probate Petition. Therefore, the Executor of the Will has a real problem when the signatures of the Witnesses are illegible and no other information about them is available.

When the Witnesses were the Testator’s friends, it may be possible to figure out their names based on familiarity with the Testator. Even then, there are usually other problems that arise when the Testator executed his Will without a lawyer.
Read more . . .


Tuesday, February 6, 2018

Revising Your Will Based on Changes in Law and Changes in Facts


It is important to revisit your documents at least once every 5 years. As the tax law changes constantly, the documents created in the past may no longer be the most efficient ones. As your family situation changes, your Will may become completely outdated.

Changes in Law

In the past, estate tax threshold used to be $1MM. Anything above that amount would be taxed at 40%.
Read more . . .


Thursday, December 14, 2017

Second Marriages: Causes of Family Strife!

When spouses divorce, there are often children left from first marriage. When one of the spouses remarries, he should be very careful that the children from the first marriage do not get disinherited.

The second spouse, who is often much younger and less financially secure, may exert pressure on her husband to provide for her in the event of his death.  The second spouse may have new children, whom the father sees on a daily basis. Simultaneously, the remarried husband may not see the children from first marriage as often (due to geography or ill-feelings from both sides).


Read more . . .


Tuesday, March 14, 2017

Update your estate documents – or face unpleasant surprises!

In a recent case that I saw, a woman lived together with a man for approximately 10 years. She loved him very much and wrote a Will, leaving all of her assets to him. They never married.

Eventually, the couple separated. After a couple of years, the woman began dating another man.


Read more . . .


Tuesday, February 14, 2017

Main Reasons Why Families Fight Over Estates

1. Location of Siblings. It is often the case that one sibling provides care and support for an aging parent, while other siblings are distant (either physically or psychologically). While the local sibling provides support, that same sibling may also control the parent’s finances. The same sibling may also bring the parent to an attorney to get his affairs in order.


Read more . . .


Monday, February 6, 2017

Top 3 Estate Battles of 2016

In 2016, several well-known families had well-publicized fights about estates. These disputes should teach everyone to plan while one has capacity!

Prince

Pop artist Prince died in April 2016 without a Will. Since his death, at least 30 individuals have come forward, claiming to be Prince’s children, spouses, or half-sibling. As of this writing, the judge on the case dismissed most of these claims. It looks like the estate, valued in the hundreds of millions of dollars, will be split amongst Prince’s younger sister and five half-siblings (pending the final results of genetic testing).


Read more . . .


Thursday, January 26, 2017

Are you at risk to have your Will invalidated?

A Will execution has many formalities - ensure that your attorney actually knows them!

Most people think that writing and signing a Will is easy. I often hear from friends "Any attorney can do it", or better yet "It's so easy, I don't need an attorney, I will do it myself".

Well, do so at your own peril. Remember that the content of your Will is only half of the calculation for getting a Will probated, since Wills can and often do get invalidated based on improper execution, particularly when the Will is executed without an attorney being present. The latest case in point: Matter of Costello, 136 A.


Read more . . .


Friday, July 15, 2016

Rich and Famous Planning: Lessons learned from Prince’s mistake


As most people by now know, the artist Prince died without a Will. The family is now set up for tens of thousands in legal costs and years of delay before the money gets distributed.

When a person dies without a Will, regardless of the size of his estate, numerous problems come up. These include:

  1. Executor. The person who will be named in charge of your estate may not be the person that you would have liked.


Read more . . .


Friday, February 5, 2016

Leaving Real Estate Property to More Than One Heir May Cause Future Problems

Property partnership may end for a variety of reasons. One common category of circumstances when real estate litigation occurs involves siblings who inherit property from their parents and have different wishes.

Multiple problems can arise.   One sibling may want to live in the property while the other one wants to rent it out. Alternatively, one sibling may want to cash out and sell the property while the other may want to keep it. The sibling who wants to keep the property may not have the money to buy the other sibling out. Furthermore, the siblings may not agree on the property’s value.

One alternative for establishing the value of the property is to hire three appraisers and take the average of their given values. Of course, the appraisers cost money.

The better alternative is to structure your bequest in a way that avoids potential conflicts amongst the siblings. No parent wants to believe that their children will fight after their death, but unfortunately it happens all the time. First, Wills and Trusts can be written such that the real estate will be given to one child while the other assets will be given to the other. Another alternative is to provide in your Will or a Trust that real estate should be sold within a year of death and proceeds should be distributed equally amongst the beneficiaries.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship. ATTORNEY ADVERTISING


Sunday, January 17, 2016

Can Court Reform a Will When the Attorney Made a Drafting Mistake?

In a recent New York case, a Will provided for disposition of 2/3 of the property (leaving property to decedent’s siblings, nieces and nephews) and was silent about the disposition of the remaining 1/3. In re Isasi-Diaz, NYLJ, Mar. 28, 2014, p. 35 (Sur. Ct., N.Y.Co.) (Mella, S.)  The attorney-draftsman provided an affidavit to the court, explaining that he made a mistake, that the decedent provided him with instructions about the disposition of her entire estate, but he made an error while drafting the Will.

The court denied the petition for reformation. The court reviewed the express language of the Will. The court also relied on the well-established New York rule that extrinsic evidence will not be admissible to contradict the unambiguous expressions of the decedent. As a result, since the Will was unambiguous about disposing only a portion of the estate, the court ruled that it could not rewrite the Will based on extrinsic evidence.

The takeaway: please review your documents prior to signing them. Attorneys are human and make mistakes. You should always request to review your documents prior to signing and actually spend the time reading them to ensure that they reflect your wishes. Do not be afraid to change or add things, since this is your document! Do not be afraid to ask questions!

 

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship. ATTORNEY ADVERTISING


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