Queens Probate & Estate Administration Law Blog

Reasons you may be able to challenge a will

Your loved one passes away and you get a copy of the will. Right away, you can tell that something isn't right. You don't think this will should stand. You want to contest it and fight for your rights as an heir.

But can you do so? Do you actually have the proper legal grounds to go to court? Or do you just have to abide by the will, even when you do not think that it accurately portrays your loved one's wishes? This is already an emotional time for you and your family, and now this legal confusion makes it that much more difficult to move forward.

Why millennials need estate planning

It is not uncommon for a person in their 20s or 30s to think that a will or a trust is only something that people in their parents' or even their grandparents' generations need. The truth, however, is far from this. While most people die later in life, accidents can happen at any time and a person may become disabled at a young age and unable to take care of their obligations or affairs even if they are still alive. An estate plan is simply smart insurance in a way.

NerdWallet notes that as more millennials become parents, the need for them to engage in estate planning grows. A clearly identified plan including named guardians for what will happen to their children should they die is something every parent should have. This is not a decision to be taken lightly. Simply saying that a grandparent will raise a child is not enough. A plan should also identify financial support for the to-be guardian.

Estate planning and health issues

When it comes to setting up an estate plan, health issues may play a role in various ways. For example, someone may be prompted to set up an estate plan specifically because of health challenges they are going through, which have made them realize that it is important to be prepared for unexpected problems that may be life-threatening. Moreover, other people may want to prepare for health issues that leave them unable to take care of themselves.

There are a number of options for those who want to ensure that they are cared for in the event they become incapacitated, and many people have benefit from setting up a health care proxy, also known as a durable power of attorney for healthcare. By doing so, you can appoint someone who you trust to make key medical decisions for you in the event that you are no longer able to make these decisions yourself. There may be other ways you can prepare for these potential challenges as well, such as making revisions to your will.

What New York law says about no contest clauses

The possibility of a nasty court battle over a last will and testament motivates some people to stick a “no contest” clause into their wills. If anyone is going to step forward to contest the will, the no contest clause will specify that the contesting individual will be cut out of the will’s provisions. While this seems like a good way to dissuade beneficiaries from going to court over a will, New York law might not uphold such clauses in all cases. 

No contest clauses might seem unfair at first glance since they present an all or nothing proposition, and if a person finds fault with the will, that person could lose out completely on the benefits of the will by contesting it. FindLaw states that for these reasons, many states will not enforce such clauses and will allow people with standing to contest wills if valid reasons exist to do so.

Taking time to grieve after the death of a relative

The immediate period after the passing of a relative is not easy and can mix heartbreak and confusion. You might feel you have to start quickly on all of your plans to handle the estate of your loved one. However, you should not feel pressured to swiftly carry out your New York estate plan. There is only one step to worry about off the bat.

The first step you should take as soon as possible is to secure the tangible property of your loved one. You want to make sure that the tangible assets your relative owned will not go missing before it is time to distribute them to whoever is listed in your relative’s will, or, if there is no will, through whatever means your relative planned. There are times when assets may vanish if someone else has access to them.

Is there a problem if executors are slow to communicate?

It is a scenario that some people face. A family member has passed, yet the executor of their deceased loved one’s New York estate has barely reached out with news about the estate and its assets, if the executor has communicated at all. You might think something is up and are exploring legal action against the executor. However, slow communication may not be a sign that you should worry, at least not yet.

As ThinkAdvisor points out, estate administration is not a quick process. It may take months or perhaps even years to complete because of the various legal hurdles that the executor must get over, including sending the estate through probate and dealing with creditors who are claiming some of your loved one’s assets due to old debts. There might also be tax problems that could take years to resolve. All of these duties may hamper an executor from making regular communications to beneficiaries.

What happens to overseas assets in estates?

Whether your will could pass through probate without your overseas assets diminished by U.S. tax depends on a variety of factors. It also is possible that you could avoid putting some of these assets in your will by establishing a trust, thereby avoiding the probate process in most cases. 

For assets you do not wish to place in trust ownership or move to the United States, you would probably want to consider a number of key points for each. It is often helpful to keep in mind that the court will likely have a different set of rules for nearly every gift you intend to bestow.

The financial responsibilities of serving as an estate executor

Losing someone you love is difficult, especially if you were close with that person. The situation can become even more complicated if the deceased party asked you to serve as the executor of their estate or the trustee for their trust.

That means that not only do you have to deal with grief, but you also have to handle the complex financial and legal responsibilities of administering an estate. The first step toward fulfilling your obligations to your deceased loved one is familiarizing yourself with your responsibilities as the trustee or executor.

Understanding “undue influence”

While creating an estate plan is a wise move for any adult living in New York, many people fail to take important steps to plan for their futures and get their affairs in order until they are old or in particularly poor health. This can prove problematic, however, because in some cases, other people take advantage of older Americans who they believe they can easily influence, and they may exploit the trust of an aging American if they think doing so would be to their benefit. At Joseph A. Ledwidge, P.C., we understand that undue influence is a common reason courts may deem a will invalid, and we have considerable experience helping others with similar concerns pursue solutions that meet their needs.

According to the American Bar Association, undue influence, although somewhat difficult to define, refers to someone’s efforts to manipulate someone else for his or her own personal gain. While undue influence can affect virtually anyone, those with memory loss and related issues are particularly vulnerable to this type of treatment. Older Americans, for example, may find that others exploit them for their own financial gain, and those responsible for doing so may try to isolate the victim in an effort to better protect themselves from detection.

Putting homes in trusts

Many people in the New York City area rent their primary residence. However, for those who own their homes, these parcels of real estate are often among the largest single-item assets in their portfolios. This, combined with the fact that property values are high in the area, has the potential to cause a considerable amount of loss in the probate process.

The way most people avoid this loss is by using trusts. As mentioned on CNN, this type of ownership has the potential to avoid the probate process entirely. Trusts are legally distant from the person who establishes them, and many are not dissolved upon that person's death. Rather, those who use these financial tools typically plan ahead so that certain heirs gain access to the funds and assets held within.

Joseph A. Ledwidge, P.C.
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Jamaica, New York 11432

Phone: 347-395-4799
Fax: 718-701-3726
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Joseph A. Ledwidge, P.C.