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Will Challenge

Tuesday, May 26, 2015

Should you use the Do It Yourself website for your estate plan?

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.


Tuesday, May 19, 2015

What happens when a Will is lost? A case illustrates a need for properly storing your documents!

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.

 


Friday, April 24, 2015

Can Wills be challenged? Absolutely! A disowned daughter and an almost-disowned son prove that it is possible to do so even when the grounds for the challenge are legally dubious!

A lot of people think that if a Will was executed under a supervision of an attorney, then the Will is a rock solid instrument that cannot be challenged. However, that is not a case. A Will can be challenged on many grounds (incapacity, coercion, fraud, forgery and improper execution are some of the common ones).

A Brooklyn father executed a Will explicitly disowning his daughter, while leaving his son $500 a week for life, with the remainder of his $8MM fortune going to an animal charity. Both children have successfully challenged the Will. The case never got to trial. A psychiatrist that the daughter hired diagnosed her father (post mortem) with a diagnosis similar to narcissistic personality disorder. After the diagnosis became public, the interested parties negotiated a settlement, where the charity got less than 50% of the initial amount, while the daughter, the uncle and the son each got a significant amount of money.

Should a Will be challenged? There is no right answer to this question. Legal grounds, family harmony, amount of money at stake and specific language in the Will all need to be considered prior to any legal challenge being raised. It helps to talk to an experienced attorney to evaluate your options.

The information in this blog was adapted from

http://www.dnainfo.com/new-york/20150305/new-york-city/owner-of-brooklyn-hardware-store-hid-tens-of-millions-of-dollars-son-says

 

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.


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