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Queens Probate & Estate Administration Law Blog

Concerns when estate planning for blended families

Many residents in New York who are planning to get married may well have been married before. According to the Pew Research Center, in 2013 both spouses in one out of every five marrying couples were getting married for the second or subsequent time. In four out of every 10 marrying couples, one spouse had previously been married. These realities bring new concerns to the forefront when looking at making a good estate plan.

Concerns involve how to appropriately direct the assets each partner brings to the marriage but also how co-mingled or joint assets may be handled. Forbes explains that a trust may not always be sufficient even thought it can be a valuable tool. Some assets are simply not listed in a trust as they are not titled items, therefore making the use of a will a wise complement to even the best trust.

Closing accounts and other executor responsibilities

If you have been appointed the executor of your loved one's estate, you could have many questions when it comes to your responsibilities. As executor, it is vital to avoid any breach of your fiduciary duties, which may lead to serious consequences. For example, a beneficiary could decide to take legal action against you. At Joseph A. Ledwidge, P.C., we can understand how stressful it can feel to be in this position, especially if you are mourning a loved one's death. However, you can reduce the likelihood of additional hardships by carefully going over your different responsibilities, such as managing the estate's financial affairs.

As the executor, you may be asked to carry out a financial action that the decedent was able to do before they passed away, such as shutting down a bank account. You may have to close other types of financial accounts as well, such as a credit card account. In some cases, this may not be your responsibility, however, such as an account that was jointly owned by someone else. There are many other financial considerations when it comes to executor responsibilities, such as those involving taxes and debts. Moreover, you may have to face disagreements over the distribution of property and various other issues.

How can I avoid probate?

Did you know that when you die, your estate does not have to go to probate in New York? While many estates do, it is not required if you ensure everything is in proper order before you pass away. According to The Balance, there are few options you can use to help prevent your estate from having to go through probate.

You can use joint ownership on your accounts and property. Having joint ownership makes things rather simple because upon your death, everything simply and legally transfers to the surviving owner. This occurs naturally for many things if you are married. Most of your property and assets will go immediately to your spouse without concern. There are some drawbacks to joint ownership. The accounts or property are considered the other person's assets, too, so if he or she gets divorced or files bankruptcy, you could lose them. You also lose control over what happens with the assets after you die, which means you cannot provide for your other heirs. 

What is undue influence and how can it impact an estate?

People generally create a last will, trust or estate plan to protect their last wishes and provide for their loved ones and causes after death. Sometimes, however, the last will or estate plan ends up looking much different from what everyone in the family or the presumptive heirs expect. When that happens, there is a good chance the will will get contested and end up in New York probate court.

When a will goes to the probate courts for approval, anyone in the family or considered an heir can contest the content of the last will. However, in order to do so, that person must have valid grounds for the contestation. Some of the more common arguments include lack of mental capacity, lack of validity, duress, fraud and undue influence. Of these issues, undue influence is likely one of the most common, but also most difficult to prove.

What is an ABLE account?

There are many things that could go wrong with your estate after your death in New York. You will not be here to deal with them, so you have to plan ahead and do what you can now to try to prevent anyone contesting your will or making changes that would negatively impact the family members you want to ensure are taken care of. One area where you may be concerned is if you have a disabled child. Ensuring he or she is cared for after you die is likely incredibly important, but a will contest could put that care in jeopardy.

While there are many options for how you can set money aside to try to prevent issues, one new option is an ABLE account. According to the ABLE National Resource Center, an ABLE account is a savings account created under the 2014 Stephen Beck Jr., Achieving a Better Life Experience Act. The account is tax free and the money in it is used only for the person for which the account was set up. Money in the account can be used for expenses related to the beneficiary's care. This could include housing, medical bills, transportation, training and general care.

Unexpected problems and your estate plan

 Smart estate planning involves a number of strategies and it is essential for you to carefully go over the ins and outs of your plan. Unfortunately, there are a variety of problems that can arise, such as a motor vehicle accident, which may necessitate making certain changes to your estate plan. After a crash, you may be struggling with physical pain, injuries, and other hardships. However, an accident can also upend your financial circumstances and may require that you modify your estate plan.

Aside from hospital bills, sustaining an unexpected injury can interfere with your ability to work. Unfortunately, these accidents can alter the course of your financial future. A car accident or another type of unanticipated problem could have a negative impact on your retirement account, your future earning potential, and other facets of your finances. Moreover, you may have a change of heart following a crash. For example, a parent may change their mind about the way in which they will distribute property among beneficiaries after they pass away. For example, one of their children may have come forward to help after the crash, leading to a change of heart.

Talking to your kids about inheritance

Estate planning can be highly emotional and may also generate uncertainty. For example, you could be unsure of which type of estate plan to go with or you could be worried about how your children will react to the way in which you decide to distribute your assets among beneficiaries. If you are struggling with these types of challenges, it may be helpful to sit down and carefully assess the situation. Moreover, you might find that talking to your children about the situation is beneficial and provides a clearer understanding. However, they may not agree with your decisions, but it is important to remain firm and do what you believe is best.

Children can be upset by the way their parents decide to distribute property after they pass away. Some may feel as if they were cheated out of inheritance they should have received, while others may find themselves in the middle of a contentious dispute. During the estate planning process, it is important to keep these different factors in mind and take steps to reduce the likelihood of such conflict. For example, if you carefully discuss these details with your children, or try to find ways to address any questions or concerns they have, you could be able to minimize or even prevent a dispute within the family.

Working through a kinship proceeding

The probate process can be challenging for many different reasons. However, kinship proceedings can be particularly difficult to deal with. Our firm knows that these hearings can be emotionally taxing and have a significant financial impact on those involved. As a result, it is crucial for you to pinpoint the smartest direction forward if you are preparing for a kinship hearing.

If one of your loved ones has recently passed and they had no will as well as no children, marital partner, or parents, you could be able to gain access to inheritance if you were their cousin, aunt, or uncle. In order to do so, however, you will need to prove your kinship. Kinship hearings are emotionally draining, in some cases, and may present a number of hurdles. Not only will you have to show that the person who passed away did not leave behind children or have any parents or a marital partner, but you will have to show your relation to them as well. In fact, you could be required to present various documents and even conduct genealogical research.

Contesting a will over duress

There are different reasons people decide to contest wills, which we have addressed on this blog. For example, some people may believe that a will is not valid or that an executor has not distributed assets appropriately. Our law firm also knows that some wills are contested over allegations that a decedent was under duress when creating their will. Whether you are fighting untrue allegations that a will is not valid for this reason or you believe that your loved one was under duress when working on their will, it is vital to stand firm for your rights.

First of all, it is important to recognize that duress can take different forms. For example, a person who is under duress when creating a will may be subjected to coercion, threats of violence, or restraint. If it can be proven that someone was under duress when crafting their estate plan, the will may be considered invalid, which could have a significant effect on beneficiaries. For example, if you believe that you or another beneficiary were supposed to receive something that was given to someone else as a result of duress, contesting the will could be the proper way to address this situation.

Tips to avoid probate and challenges as an executor of an estate

Being the executor of an estate is often a thankless job. The person whose estate you are handling, the testator, may have included a provision for financial compensation for your efforts. When you consider the stress, work and strain on relationships that can result from handling an estate, however, the amount may not seem like enough. Sometimes, being an executor results in no compensation whatsoever.

Regardless of whether or not you're being paid, you probably want to do the best you can to uphold the last wishes of the testator. Sadly, other people, especially family members and heirs, may take issue with your actions.