What are common reasons to contest estates and last wills?

Few people have more than a cursory knowledge of the probate process until they find themselves involved with an estate. Even if you created your own estate plan, you likely relied on the guidance of an attorney to create your will. So, you may still be confused now that you need to administer an estate as executor or if you are a beneficiary to a large estate.

One issue that people often find confusing when and how to contest a will or estate administration process. If you are an executor, you may be nervous about possible challenges to your role as administrator of the estate. If you are an heir, you may have similar questions about when you should consider challenging a last will or estate administration. Knowing the most common causes for contesting an estate can help you make informed decisions about your situation.

Heirs believe that a will is not valid

This is the most common reason people contest a will. When the contents of a last will and testament deviate from what a family expects, they may be concerned enough to bring a challenge in court.

This is a common issue in families where one spouse remarries and later attempts to leave the vast majority of assets to the new spouse, instead of to children, grandchildren and other heirs. It is also a concern when someone rewrites a will in the last months or weeks of his or her life.

Concerns about undue influence or duress at the time of signing a will could also be grounds to contest the contents of a will. If there is reason to believe that the deceased suffered from impaired cognitive abilities at the time of the will’s creation, concerned parties could dispute the resulting terms.

Heirs believe estate administration has been mismanaged

Even in scenarios where the a person’s will is clearly legal, it is still possible for the estate to end up in probate litigation. Even if all heirs and family members recognize the validity of the last will, they may feel that the executor has mismanaged the administration of the estate. This is why anyone acting as executor should handle all matters in a timely fashion and maintain thorough records about all assets and obligations.

If family members, beneficiaries or heirs have concerns about the executor’s inability or unwillingness to complete the necessary tasks in a timely manner, they can challenge the administration of the estate. In this scenario, the executor will need to demonstrate his or her efforts to properly handle the estate to the court. If the courts do not feel that the individual’s performance is sufficient, they may name a new executor to handle the estate.

If I pass away, who would be the ideal guardians for my children?

Part of wise estate planning includes considering the uncomfortable but necessary scenario of who should raise your children if you and your spouse suddenly and unexpectedly pass away. Choosing the proper New York guardians can be agonizing, but it is necessary to ensure your children enjoy a fruitful and proper upbringing. You can make the process simpler by narrowing down the decision making process into a few key areas.

An article in Forbes recommends that guardians should share the values of the parents as far as raising their children is concerned. Parents should take into account the kinds of values that are important in bringing up their children. These may involve making sure the children are raised with the same cultural upbringing that the parents have. But it can also involve how the children are encouraged to follow their passions. Some parents may not want their children to have too strict an upbringing.

Possible values can include any or all of the following:

  • Religion or spiritual beliefs
  • Cultural or national background
  • Political or ideological beliefs
  • Moral values such as generosity
  • Educational excellence

In composing your list of values, it is likely that you will never be fully satisfied with your child’s prospective guardian. This is not unexpected. Parents have strong emotional bonds with their children and cannot imagine another party doing as good a job as they can. However, if your possible guardian can embody your essential values, that is an important step.

But even if a guardian is a good match for the parents’ value system, parents must also determine if the prospective guardian is both capable and willing to take care of their children. The person or persons you choose should have the financial resources to house, feed and educate your children. Additionally, the guardians should be emotionally and physically healthy. Raising children, especially younger ones, can require a lot of stamina and patience.

And even if the guardians are capable, they should also be willing. You must receive the consent of the prospective guardians first. And even if they agree, do not accept a ready yes. Taking care of children is a great responsibility. You have to take your guardian candidates through every facet of how your children will live and be raised, and see that your candidates understand what they are getting into. And finally, be sure that your guardian candidates love your children. Take care that the people you choose as guardians can provide a safe and loving home for your children.

This article is intended to educate readers on guardianship and is not to be taken as legal advice.

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.

This influence can come in many forms as well. For example, flattery, deception, and trickery are all tactics that can be labeled as undue influence. Insinuations and exhortations can also fall under this umbrella. These actions can come from any party as well, like children, parents, or other relatives.

Unlike duress, which involves more extreme measures like threats or blackmail, undue influence is less obvious. Because of this, it can be a little more difficult to pinpoint where the problem started, or to legally hold someone accountable for the end result that their manipulative actions had.

If you believe that undue influence has played a role in how things happened before or after your loved one’s passing, you may wish to speak with an attorney. They will be able to help you identify and deal with situations involving undue influence.

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. 

Your goal in securing the property of the deceased, besides making sure nothing is lost, is to create an inventory of all the assets. When the probate process begins, you want to have the inventory on hand so you can file it with the probate court in a timely manner. It is also wise to contact a probate lawyer as soon as possible. A probate attorney will understand all the relevant paperwork that should be filed, including an asset inventory. Early consultation will help ensure that you do not get tripped up when the probate process commences, or if someone contests the estate assets.

Another reason to gather the decedent’s property and assets quickly is when the bills start coming due. Just because a person has passed does not mean their expenses die with them. A court may also rule that some debts and bills are to be paid from assets from the estate. Making sure none of the assets are lost can help ensure that creditors are paid and that some if not most of the inheritance will remain afterward. So while composing an inventory, it is important to also list all the liabilities the deceased incurred in life.

This article, while intended to educate readers on asset preservation, is not to be taken as legal advice.

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.

You may also want to consider leaving your child assets in a trust. Doing so has several benefits. First, by placing your assets in a trust, they essentially skip the probate process, which can save your loved ones time and money later on. Leaving assets to your loved ones in a trust also benefits them in terms of taxes, because it reduces the amount of tax assessed on the estate.

Once you become a parent, it also becomes increasingly necessary that you designate someone who can serve on your behalf in certain situations. You may want to give someone power of attorney, which means they can make certain decisions on your behalf if you become incapacitated. You may, too, want to take this time to appoint someone  executor over your estate, so that he or she can see that your debts are paid, and your wishes, fulfilled, down the line. More about estate planning is available on our web page.