4 ways your last will and testament could be invalid

Drafting a last will and testament is not as simple as scribbling down a few notes on your deathbed and giving it to a trusted friend. In some cases, a handwritten “holographic will” like this could withstand a challenge in court, but an informal will is risky and ill-advised.

In fact, there are numerous ways that a will could be invalidated . It’s important to understand these potential will weaknesses so you can avoid having your will contested after you’re gone.

Problems with the way you signed the document

In most situations, you’ll want to have two different people present to “witness” your signing of the will. These people need to be non-beneficiaries. In other words, they will not be involved in any dispensation of the estate and they do not stand to benefit in any way from your will. Furthermore, they should not have a legitimate claim to inherit under state intestacy laws that would go into effect if no will were present.

The witnesses need to be present at the same time when you sign your will. They also need to sign the document while the others are watching.

Problems with testamentary capacity

You need to have “testamentary capacity” when you create and sign your will. To have testamentary capacity, you must understand (1) the value of your assets, (2) the people who will inherit your assets and (3) the effect of signing the will. If you are insane, temporarily insane, mentally incapacitated or suffering from dementia, at the time of signing your will, it could invalidate the document.

Problems related to undue influence

Imagine someone held a gun up to your head and said, sign this last will and testament in front of these two witnesses. Basically, you signed over all of your wealth to be inherited by the person holding the gun. This would be undue influence, and — so long as the influence becomes known — it would invalidate the will that you sign.

Problems related to fraudulent wills

A fraudulent will could be an entirely fabricated document. It could also be a document that other parties trick the testator into signing. One of the issues relating to a fraudulent will — or any potentially problematic will for that matter — is the fact that we cannot ask the testator what is correct because he or she is no longer here to answer questions.

Make sure you draft your will in a legally appropriate manner

Being careful with your will planning is essential. Don’t risk losing the legacy you leave behind because you made a simple mistake while planning you will. Learn about New York estate planning law and plan accordingly.

Does a will always have to go to probate?

When you think about probate, you probably automatically think about a will. You may have been led to believe that all wills have to go through probate after a person dies. This is not always true. It really is dependent on each situation. Your will may never have to go through probate in New York courts, which could make things much easier on your loved ones since probate can be long and tedious.

According to The Balance, if you have set your will up so that property passes onto another person automatically upon your death, such as happens with joint ownership, then, your will may not need to go through probate . You can also set up automatic transfers that do not require any court intervention through trusts and by using beneficiaries on accounts or other monetary assets. 

In addition, if your estate is rather small, meaning you do not have a lot of valuable things to leave behind and the monetary value of your estate is small, you also may be able to avoid your will going to probate. This is especially true if you have a spouse because in most cases, everything you own will automatically go to your spouse under the law. 

Do note that it is important to ensure your will is legal. If it has anything in it that might be controversial or may be against the law, then it will need to go to probate. This information is intended to be educational only and is not to be used as legal advice. 

Will contests and improper execution

Wills are disputed for different reasons that have been covered on this blog, such as undue influence. With that in mind, you should recognize that many other issues can lead to a will dispute, such as allegations that the will was not executed properly. From executors to beneficiaries and those creating a will, it is essential to have a firm grasp of rights and any responsibilities. Our New York law office can fully understand the stressors that people come across while handling these matters, but failing to approach the situation with care can be disastrous.

Wills are executed improperly in different ways and the laws vary from one state to the next. In some instances, a will may not be executed properly because witnesses were not present or because the will was not signed or in writing. If you are creating a will, it is absolutely pivotal to make sure that the will is executed correctly, since failure to do so could lead to a wide range of difficulties for your loved ones down the road.

When a will contest arises over improper execution or any other factor, the path forward can be challenging for everyone involved. Sometimes, these disputes can turn nasty so it is very helpful for those who are in the middle of a will contest to look for any possible ways they can minimize tensions or prevent disagreements from spiraling out of control.

Our will contests portal provides additional information interconnected with  improper execution and other will dispute causes.

Probate disputes and the holidays

Probate disputes can take shape for all sorts of reasons. In some instances, a dispute may arise because of misunderstandings about a loved one’s estate plan. Beneficiaries may believe that the executor did not carry out fiduciary duties properly or an executor might believe they have been wrongfully accused of breaching their duties. Regardless, these disputes can be quite difficult for families to manage and this is often especially true during the holidays. If you plan on attending a holiday celebration in the near future, or are worried about the impact this dispute may have on your family, it is smart to do what you can to minimize tensions.

Sometimes, people try to avoid each other in the middle of a dispute over a probate matter, knowing that contact might escalate tensions. It is never a good idea to escalate the situation, but escalation may be inevitable in certain instances, especially if people come face-to-face at a family party. During these times, heated arguments may occur or there may be an uncomfortable atmosphere that affects the celebration. If possible, you should try to be cautious with what you say and address the situation with care.

By navigating to the area of our law office’s site that covers probate law, you will have the opportunity to go over more on probate disputes . We know how emotional these disagreements can be and believe it is essential for those involved in a dispute to try and clear up confusion as well as protect their interests.

Why you need long-term care instructions in your estate plans

You may think that the sole purpose of estate plans is for you to instruct your loved ones in New York about how you want your estate to be divided upon your passing. But did you know you can also use them to outline your long-term care plans? The longer you live, the greater the possibility that you will require long-term care. It is estimated that at least “78 percent of seniors who are 65 years old and above will need  long-term care services at some point in their lives,” states Life Happens. 

It is important for you to consider what will happen before you die that could affect the value of your estate. If you do not have the right plans in place, you could end up needing to use a portion of your estate and assets to pay for your end-of-life care. Here is why you should have long-term care plans. 

You may or may not qualify for Medicaid and Medicare benefits. In the event that you do, they may not provide enough coverage for all of your long-term care expenses. According to Time.com, Medicare does not provide coverage for in-home care and assisted living, but it does pay for a maximum of 100 days of nursing home care. You should not expect your family and loved ones to pitch in towards your end-of-life care expenses. They have their own lives and may not be able to do so without compromising their financial situations.

Take time to anticipate the fact that you may live longer than you expect to. That way you can include the proper provisions in your estate plans for your long-term care needs.