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Queens Probate & Estate Administration Law Blog

What is undue influence?

As someone handling matters of estate in New York, there are plenty of legal hurdles that you may have to jump. The number of these hurdles can increase dramatically if you have to deal with matters of undue influence on top of everything else. But what  undue influence?

The Legal Dictionary defines undue influence as any persuasive act carried out by an individual with the intention of manipulating someone else's judgment. This is a pretty broad definition that can cover a number of different scenarios. In matters of the estate, it usually refers to a party that has exerted their influence over the person who has passed in order to get them to change their will, or to change their mind about estate matters.

What should I immediately do when my loved one passes?

The news that a loved one has just passed can be heartbreaking news, even if the passing was expected. While it is important to take some time to grieve, as a survivor and close family member, you also have a duty to make sure the estate is preserved so everything that the deceased had owned can be handled according to the New York decedent’s will. Agingcare.com points out that the first immediate step you should take is to secure all the tangible property that the deceased owned.

Tangible property is anything that you can physically touch, so that would include anything in the deceased’s home, like kitchen silverware and plates, or items you would find in a living room like a television screen, a couch, chairs, a table, lamps or wall art. This should be done as soon as possible. In the aftermath of a person's death, it is possible for the decedent’s possessions to start going missing, particularly if family members or friends of the deceased have access to the decedent’s home. 

Important estate planning steps for new parents

If you count yourself among the many people across New York who have recently become first-time parents, congratulations. Your may feel consumed with learning the ropes of your new lifestyle, and you may, too, suffer from sleep deprivation as you navigate the waters of parenthood. As a new parent, you face unique considerations with regard to estate planning, and many people choose to create or revisit their estate plans after giving birth to a child. At the law offices of Joseph A. Ledwidge, P.C., we understand the estate planning needs of new parents, and we have helped many clients facing similar circumstances make plans for the future.

Per Nerdwallet, one of the estate planning steps you may want to consider taking after having a child is designating beneficiaries for assets that might include life insurance policies, retirement plans and the like. Even if you already named a beneficiary for these and other assets, your needs or desires may have changed now that you have a son or daughter of your own.

What it means to sign a will under duress

Heirs and beneficiaries to a New York estate want the testor's will to have been completed under fair circumstances. A person leaving his or her assets to beneficiaries should do so without any coercive or intrusive influences. However, this may not always be the case. Sometimes a person may actually compose a will under duress. If a heir or beneficiary suspects a testor signed a will under coercive pressure, they can initiate legal action to contest the will.

The definition of duress offered by Findlaw describes the term "duress" as a derivation of the Anglo-French word duresce, which literally means "hardness" or "harshness." In its modern meaning, duress is defined as compelling an individual to commit an act against that person's own wishes or desires. This compulsion is wrong in an ethical sense and typically is illegal. It can take the form of threatening a person, physically or psychologically, to draw up a will favorable to the coercer. In essence, to be under duress is to be subjected to harsh behavior designed to get you to do something you do not want to do.

Educate yourself about no contest clauses before probate court

When someone dies, there are often concerns among loved ones and family members about how to handle the estate involved. Even when someone has taken the time to create a thorough and valid last will or estate plan, others within the family may not agree with the will or may find themselves unhappy about the administration of the estate.

That unhappiness can often give rise to challenges to an estate, which can result in the involvement of the probate courts. Some people creating last wills or estate plans will go to great lengths to avoid someone contesting their plans. In some cases, they may decide to include no contest clauses when planning their estates.

What are reasons to assign a power of attorney?

New York residents should face the fact that they may not always have the ability to decide what will happen to their personal finances. One way for you to ensure that you will retain control over your assets, including how they are managed, is to assign someone to act as your agent, to grant them power of attorney. Your agent will manage your finances in the event you cannot do so.

According to CNN.com, there are a number of reasons to assign a power of attorney. First, there is no telling what life may throw at you. Some people may suffer a tragic accident that leaves them incapacitated and unable to make important financial decisions, pay bills or manage monetary investments. Even if you should be fortunate to live a long life, age still brings a general decline in vitality and health, and it is possible you may suffer diminished mental ability in your advanced years. If incapacitated, a power of attorney may be able to make decisions when you are unable to do so.

What does the word fiduciary mean?

We often hear that people contest estate executors in court because they failed to fulfill their fiduciary duties. If you are new to estate law and are not at all familiar with the term “fiduciary,” it is important to understand the basics so, in the future, if you should have to deal with a New York estate executor, you will possess a good understanding of how the executor should fulfill his or her task.

The Legal Dictionary describes the concept of a fiduciary. First, the term “fiduciary” can refer specifically to a person, to someone who is entrusted to manage the property or assets of another person. In the case of estate law, a fiduciary is one who manages the estate on behalf of another. When the person who owns the estate passes away, the fiduciary must carry out the wishes of the deceased, however those wishes are expressed.

What are an executor's fiduciary duties?

You are already probably on the right track if you are asking about your obligations as an executor of a New York estate. However, the question is not as simple as it might seem to you at first. Your responsibilities are subject to change based on the type of estate you are named to administer. 

The two major distinctions revolve around the way your estate is documented. If the decedent of your estate passed without a will— or was intestate, in other words— then you would face slightly different obligations than if he or she left a will behind. There are also different terms for these two fiduciary positions:

  • An administrator works with an intestate individual's estate through an administration proceeding
  • An executor administers a will through the probate process

Why payable on death accounts should be used with caution

As someone who is planning their estate and future legacy in New York, it is likely that you are familiar with payable on death accounts (POD), otherwise known as transfer on death accounts (TOD). They are generally known as a great way to go about avoiding probate on the assets contained within these accounts.

Avoiding probate tends to be considered as advantageous by most since it means that assets are transferred quickly and directly to allocated loved ones without needing to go through the lengthy and expensive probate process after the event of your death.

What happens when fraud occurs when creating a will?

Usually, you expect that when a loved one creates a will, it is done of his or her free will without any interference and expresses his or her true wishes. However, there are cases in New York when a will is created under fraudulent terms. When fraud occurs, it can void the will and make it unenforceable. Of course, you must first discover fraud has been committed. 

The New York City Bar Association fraud occurs when someone influences a person to make certain property decisions in his or her will through lying or coercion so the final will benefits the person committing the fraud. It could be something as simple as someone not telling you the location of someone you want to leave assets to or as complex as someone manipulating you into thinking your intended heirs should not receive your assets.