What should I know about letters testamentary?

You might wonder how an executor gains the legal authority in New York to take direct charge of the finances and property of a person who has died. It is actually quite simple. The legal authority to start managing an estate comes when a probate court issues letters testamentary. Whether you are preparing to become an executor yourself or are just a beneficiary, it is important to know what part letters testamentary play in probate matters.

As Bankrate explains, after an individual has passed away, a probate court will determine the validity of the decedent’s last will and testament. Assuming that the decedent had named a person in the will to take on the duties of the executor, the court will authorize that person to act as the executor if the court rules that the will can go into effect. This authorization occurs when the court issues letters testamentary.

Letters testamentary allow a person to perform all the necessary duties of an executor. The executor is allowed to open a bank account in the estate’s name and gather the money of the estate into the account for the purposes of closing out the various matters of the estate. These can include paying off bills and taxes the decedent had still owed before passing away. Additionally, the executor is empowered to take inventory of the assets of the estate, file the final tax return for the estate, and distribute the assets of the estate.

In the event that someone dies without a will, a court will not authorize letters testamentary. Since the decedent did not make a will and did not name an executor for the estate, the decedent’s estate is deemed intestate. It will be up to the court to appoint someone to be the executor. To authorize the executor to carry out the duties of the position, the court will issue letters of administration.

Keep in mind that this article is written to educate New York residents on probate topics. Since issues with probate take many forms, this article should not be read as legal advice.

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.

You may be able to challenge the will. Here are a few potential reasons why:

1. Undue influence impacted your loved one’s decisions

In other words, their decisions were not really their own. The will does not reflect what they wanted, only what someone else influenced them to write down.

For example, perhaps you have an older copy of the will in which you received far more of the estate. Right before their passing, your parent changed the will to give more of the estate to a step-sibling, whom you never got along with but who lived closer to your parent. You think that they convinced them to make the change by manipulating them in the fragile time near the end of their life.

2. Your loved one drafted the will without testamentary capacity

This is often a problem for people with dementia and other mental disorders. They may no longer have the mental capacity to understand what the will means, what assets they control or even what papers they are signing.

This could be related to the manipulation discussed above. Perhaps your step-sibling waited until your parent no longer understood the legal process and then convinced them to move assets out of your name. They never wanted to do this and didn’t even understand that they did.

3. Your loved one only signed through fraud

The extreme end of the example noted above is when someone uses fraud to get an elderly person to take an action they don’t know they’re taking. They can do this by lying directly.

For instance, maybe your step-sibling altered the will and then brought it to your parent. They told them it was a simple medical form they needed to sign for the hospital. They did it, trusting that person. However, they got tricked into signing an altered will that they’d never seen.

Now what?

As you can see, you may have a case. Make sure you understand what legal steps you can take to defend yourself and your loved one’s real wishes .

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.

ThinkAdvisor encourages millennials to give consideration to what might happen if they were to be involved in a tragic accident. Who would be able to  make medical decisions on their behalf if they could not do it for themselves? This is another thing that can be identified in a good estate plan.

Documenting online identity and login information should also be done so that the appropriate person or persons would have access to these accounts in the event of a death. Beneficiaries for work-sponsored 401K plans and life insurance policies should also be updated and reviewed regularly.

 

 

 

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.

Ultimately,  health issues can be incredibly overwhelming and disruptive, so it is imperative to be prepared. When it comes to estate planning, you should not only be taking into consideration your finances and those you love, but other important aspects of your life as well, such as your health. By preparing yourself for issues that could arise in the future, you may be able to rest easier at night knowing that you are ready for unexpected problems.

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.

New York law, however, is quite specific, stating that no contest clauses are valid in the state. A testor does not need to provide a beneficiary with any alternative benefits if the beneficiary contests the will. Also, it does not matter if a beneficiary has a probable cause to contest the will. The no contest clause can still take effect and disinherit the person for contesting. However, this is not true for all cases.

State law does provide specific exceptions that bar a person from being disinherited. For instance, the contesting individual may only be claiming that the will is not being offered in the correct jurisdiction and is not challenging the provisions of the will. A challenger may also not be competent under the law to make the challenge in the first place and thus cannot be held responsible. State law provides this exception to infants as well.

People may also suspect that there is something wrong with the will itself, perhaps believing that the will is not even legitimate. State law permits residents to challenge wills if they are forgeries. A will might also have been superseded by a later will but the earlier will was wrongly put into effect, which can also form the basis for a legitimate challenge.

Additionally, a no contest clause cannot be used to coerce people to not engage in legitimate probate actions. A beneficiary may have documents or information that are relevant to a probate proceeding but the testor of the will might not want to come to light. Regardless of the testor’s wishes, a person cannot be disinherited for bringing these documents forward. A person also cannot be disinherited for not participating in a petition to put a document through probate as a last will.