Probate

Many people believe that their situation is so simple, that they have no need to go to an estate planning attorney. However, I do not pretend to be an expert in many fields of work (I'm not a doctor,  I'm not an engineer, etc.). Why do so many people think that they are an expert in estate planning?

During a regular consultation I usually get the same question 2-3 times “but isn’t it true that …”, to which my answer is most often “no, it is not true”. There are lots of misconceptions about the estate planning and Medicaid law. There are also lots of issues that you might not even be aware of that you need to think about.

Some of the examples include:

1. If you are leaving your entire estate to only one person, to the exclusion of your other family, that person may need to go through YEARS of probate court procedures and hearings  before the assets get distributed to him.

2. If you are leaving your money to a minor child outright, that child will receive all the money once he turns 18. Did you really think the child will be mature enough to handle the assets?

3. If you are signing your will without attorney supervision, there is no presumption of its validity. That means it may be much easier to challenge your Will by anyone who believes he was unfairly treated by you!

4. If one of the witnesses to your will is also a beneficiary under that will, a large part of the bequest to that person may be invalidated.

5. If you are leaving money outright to a person with special needs, that person may lose her government benefits, including health care.

6. If you are leaving money to your spouse, the money can be passed tax free. But if you are leaving money to your children, there may be federal and state estate taxes due.

7. If you are leaving all of your assets to your spouse, and then later the spouse remarries, your children may not receive any money. Is this something that you wanted?

 These are just some of the examples of problems that 'simple' estate planning software can create.  All of the above examples could be avoided, with proper and knowledgeable planning. 

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.

A New York case, the Matter of the Estate of Robyn R. Lewis, is going up in front of New York Court of Appeals now, to decide a case of a missing Will.

Robyn Lewis executed a Will in Texas in favor of her husband; the Will also provided that if the husband predeceased her, her father-in-law would be the executor and sole heir. Later, the couple divorced. As a result of the divorce, under New York law, the husband was effectively disinherited, but the ex-father-in-law was not.

Later, Ms. Lewis executed another Will, leaving everything to her two brothers. She gave this second Will to her neighbor for safe keeping. When she died, the brothers, who were not aware of the new Will, applied for and received Letters of Administration (if there is no Will, then the law determines who gets the assets). Later, however, the ex-husband found out that Ms. Lewis was dead, and his father applied for the Letters Testamentary, on the basis of the original Will. Unfortunately, the neighbor lost the second Will given to him for safekeeping.

The Surrogate revoked the Letters of Administration granted to the brothers and admitted the earlier Will to probate. It is very unlikely that Ms. Lewis would have wanted her ex father-in-law to receive her family house! The brothers, of course, have appealed. Given that this is a modest $200,000 estate, by the time this litigation is finished, the majority of the estate may be consumed by the legal costs!

Lesson to everyone: be careful how you store your estate planning documents. Make a copy or two (but do not unstaple the original!)  Keep the original (either in your home, safe deposit box, or give it to the drafting attorney) and give a copy to your family.

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.

There are several ways in which a Will can be challenged. The three main reasons for contesting the Will include:

1. Proper execution of a Will

2. Whether the decedent had testamentary capacity to execute a Will

3. Whether the Will was the product of undue influence or duress.

Whether or not the Will was the product of undue influence or duress is not easy to prove. The answer is usually determined at trial, and it is very fact specific.

In general, the objectant to the Will must establish a motive, an opportunity and actual exercise of undue influence (specific instances in which undue influence was actually exercised). Some of the issues that the court will examine include:

• Was there was a dependency upon and subjection to the control of the person supposed to have wielded the influence.

• Was the person who was supposedly wielding the influence present at the time of the Will execution? Was that person involved in preparing the Will?

• Was there a prior Will? Did the new Will change the disposition of assets in unexpected and unexplained ways?

• Did the beneficiary have a confidential relationship with the decedent? A confidential relationship includes being a lawyer, an accountant, a financial advisor, or other person of trust, who assisted the decedent in managing his financial affairs.

The court is likely to review all evidence regarding the decedent, including mental capacity, physical capacity, relationships with the beneficiary and relationship with the remaining family before deciding whether or not a Will should be invalidated.

Estate litigation is expensive, time consuming and embarrassing. It is better to avoid it all together, if possible. Talking to an experienced attorney who will anticipate the issues that can arise in litigation and advise about the best methods of avoiding it may save your loved ones money and heartache.

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.

Probate is a process that proves to the court that a decedent’s will satisfies all the statutory formalities and reflects the decedent’s wishes. Only after the court is satisfied that the Will is valid, will it grant probate, allow fiduciaries to be appointed and let the directions of the Will be carried out.

Freedom to dispose of assets: In New York, a testator of a Will has almost complete freedom to distribute his assets as he wants. There are, however, a few prohibitions. First, one cannot disinherit a Spouse (unless there was a valid prenuptial agreement or some extraordinary circumstances). One can, however, disinherit some or all of his children, siblings, and parents. Second, one cannot violate public policy through one’s bequests (such as promoting terrorism, encouraging divorce, encouraging racism, etc). Third, one cannot dispose of assets that pass through operation of law (such as jointly owned property).

Reasons for court to deny a will probate: The court can deny probate on the grounds of lack of testamentary capacity, failure of proper execution, fraud, and undue influence.

Finding the Will: If the proponent of a decedent’s will cannot locate it, there may have to be some preliminary steps. Sometimes the draftsman attorney keeps the Will in his office and executor has to contact the attorney. Sometimes, the Will is filed with the Surrogate’s Court. Sometimes the Will is kept in a Safe Deposit box: then a petition to search the deposit box must be filed with the cour, and the safe deposit box must be examined in the presence of a bank office. Sometimes, the Will is kept in the home of the decedent; then a petition to search the apartment must be obtained from the court and the apartment will be searched in the presence of a police officer.

Who can offer the Will for Probate? The proponent of a Will is most often the Executor listed in the Will. However, any person having an interest in the estate, including a legatee or a creditor, may offer the Will for probate.

What must the probate petition include?  

1. The petition must describe the Will (give the date of the instrument and names of attesting witnesses)

2. The petition must include the names of all the people who are entitled to receive money under the terms of the will and the names of all the people who would be entitled to receive money from the decedent under the law (if there was no will).  All these necessary parties must either consent to the probate petition, or they must be served with a citation.

3. The petition must state the size of the estate.

4. The petition must identify any extraordinary issues.

5. The petition must prove that the decedent is dead (by attaching a death certificate).