Challenging a Will

estate planning lawyerWills can be challenged by potential heirs when they are of the opinion they have not received what they are entitled to from the estate of the decedent. Wills can also be challenged with regard to the handling of the administration of the estate by the executor.

The Probate Process

When an individual dies, the process whereby a court determines the validity and/or acceptability of the Will is called the probate process.  During a probate proceeding, a loved one or other heir can appear in court and challenge the Will. There has to be an appropriate statutory or case law basis for challenging the Will. The general feeling that the individual should have received a greater portion of the decedent’s assets is not sufficient to be successful in these proceedings. Some of the bases for challenging a Will are as follows:

  1. Lack of testamentary capacity. There is a requisite amount of mental acuity necessary for an individual to prepare a Will. Individuals who are on medication, have debilitating illnesses, or are suffering from Alzheimer’s, dementia, or other illnesses which affect one’s mental acuity at the time the Will is executed can be a basis for challenging the Will.
  2. Undue influence or fraud. In these situations the individuals challenging the Will can show that a caregiver or other individual exercised such dominion over the senior citizen that he or she did not have free will or ability to make an independent decision with regard to who would be the appropriate beneficiaries of his or her estate. The individual challenging the Will must show the decedent was tricked into making the Will or that his or her wishes are not what is written in the Will.
  3. The Will was not properly executed. New York State has very specific requirements with regard to the appropriate manner to prepare a Will, execute the Will, have the Will witnessed and signed by the decedent. The decedent has to acknowledge before the witnesses that this is his or her Will and it carries out his or her wishes. In cases where the Will was not properly executed or prepared by an attorney familiar with the appropriate statutory formalities concerning the execution of a Will, the Will can be challenged based on the failure to comply with the appropriate statutory execution provisions.
  4. The Will was forged. In cases involving forgeries the next of kin of the decedent must prove to a court that his or her signature on the Will is false and not that of the loved one who has passed away.

Determination in the Probate Process

During the course of the probate process, the court will entertain any of the aforementioned arguments concerning the validity of a Will and other arguments which are raised. The court can set the entire Will aside or just set a portion of the Will aside. Hopefully either you or other family members will not be forced to experience the difficulties involved in challenging a Will.

estate planning attorneyElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He has represented individuals concerning Will contests throughout the New York area for more than 35 years.

Guardianship Proceedings

Please click on the link below to watch today’s video blog:

https://youtu.be/adD-G285k9M

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his attorneys have more than 100 years of combined legal experience handling all aspects of guardianship proceedings, estate planning and estate litigation.  Please call to schedule a consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

Living Wills

To watch today’s video blog, please click on the link below:

https://youtu.be/mjMKRzadRSk

Elliot S. Schlissel is an attorney with more than 35 years experience in estate planning and all aspects of estate litigation.  He and his associates are available for consultation by calling 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.

Estate Planning: What Is It?

wills and trusts lawyerEstate planning involves making decisions concerning a variety of personal matters and financial issues to deal with issues involving your demise. A Will is a basic document which allows you to decide during your lifetime who will receive your money and your property in the event of your death. It also allows you to appoint someone to be in charge of the handling of your final arrangements and the final distribution of your assets in your estate. This individual is called an executor.

Probate

Probate is the court process which authenticates the validity of a Will. If you don’t have a Will it is considered that you died “intestate”. If you die intestate, an administration proceeding needs to be brought in the Surrogate’s Court to determine who your next of kin are so they will be able to receive your assets. Individuals who die intestate have their assets passed down under New York State’s laws of inheritance.

Trusts

Trusts are another example of a testamentary device. Trusts are more sophisticated testamentary devices than Wills. Trusts can be used to prevent assets from being taken by creditors, leave assets to special needs children and special needs adults, and to give the decedent control as to how his or her assets are utilized after his or her death.

Powers of Attorney, Healthcare Proxies and Living Wills

Powers of attorney, healthcare proxies and living wills are designed to help seniors manage their money and medical decisions should they become unable due to illness or disability to handle these matters on their own.

Estate Planning Attorneys

The best way to deal with estate related issues is to consult with an experienced estate planning attorney and discuss the variety of issues which can impact on one’s assets, children, financial affairs, taxes and other issues related to moving assets from one generation to another.

estate planning lawyerElliot Schlissel is a member of the National Academy of Elder Law Attorneys.

Fighting Dementia

elder care attorneyThere is a growing prevalence of dementia and Alzheimer’s disease among seniors in America. Many seniors develop either dementia or Alzheimer’s which virtually fries their brain, and it can have a devastating impact upon their family.

Cost of Treating Dementia

The treating of dementia related illnesses is very costly. There is a study which claims that by 2050, $1 out of every $3 spent on Medicare will go to the treatment of dementia related illnesses. It is estimated by the year 2050, this will cost over $1 trillion dollars.

Curing Dementia

Both Alzheimer’s disease and other types of dementia are not curable. The treatment today simply slows onset of the disease. As Americans’ life expectancies increase, more and more Americans are expected to develop these illnesses.

Medical science does not know what causes dementia. However, there is some indication that people can reduce their risk of cognitive impairments by adopting certain life long habits which promote good overall health. It is recommended to people as they get older to exercise on a regular basis, eat appropriately, try to reduce stress and stay socially active and engaged. It is also extremely important to try to continue to learn throughout your lifetime.

Long Island Wills and Estates attorneyElliot S. Schlissel is an elder care attorney. He represents clients in all aspects of estate planning, drafting of wills and trusts, drafting healthcare proxies and powers of attorney.

Healthcare Proxy

estate planning lawyer in New YorkIt is suggested today that seniors living in America have healthcare proxies. A healthcare proxy allows an individual to designate another person to help him or her make decisions regarding healthcare in the event he or she becomes incapable of making those decisions. Healthcare proxies are designed to allow a person when they are cognizant of the potential issues they may face to authorize someone else to make decisions reflecting their wishes should they be incapacitated and unable to make those decisions on their own. These decisions deal with medical treatment and medical procedures.

The Principal

The person making the healthcare proxy is called the principal. The person the principal nominates to help him or her make decisions is called the agent. The principal can appoint one or more individuals to act as his or her agents. The way the law is set up in New York, the principal nominates one person to act as his or her agent and if that one person does not serve or cannot serve then a successor agent is authorized to serve.

Ultimate Decisions

The ultimate decision an agent makes with a healthcare proxy is whether to turn off a life support machine when it is certified by the principal’s physician that he or she is brain dead and will never be able to recover. These life support machines which are keeping bodies functioning for brain dead individuals are prolonging death and not prolonging life.estate planning attorney

Misconceptions Regarding Wills

To watch today’s video blog, please click on the link below:

https://youtu.be/XRVj__nSeAY

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his attorneys have more than 100 years of combined legal experience handling all aspects of estate planning and estate litigation.  Please call to schedule a consultation at 516-561-6645 or 718-350-2802 or send an email to schlissel.law@att.net.

Legal Fees in New York Estates

What Will the Administration Proceeding or Probate Proceeding Cost?

When a client approaches an attorney for legal representation regarding an estate matter, the cost of the proceedings is often foremost in their minds. Not all estate proceedings involve the same issues. Some cases involve complicated legal work, while other cases have limited assets and the legal work is greatly reduced. The purpose here is to discuss the types of fees attorneys charge in estates.

Hourly Billing Fees

Under an hourly billing retainer agreement, the attorneys and paralegals in the law firm perform their legal services and charge the client an hourly billing rate. These billing rates usually go for attorneys from $300 per hour to $500 per hour and for a paralegal between $100 per hour and $200 per hour.

There are both benefits and drawbacks to an hourly billing retainer agreement. A benefit is if there is not a lot of legal work, you only pay for the legal work you need. The drawback is you do not have a specific price which you are going to pay for the legal services rendered.

In cases where the executor is involved in collecting assets, dealing with creditors, meeting with and discussing issues with beneficiaries, legal fees can be greatly reduced. In cases where the executor is unable to perform any significant work on the case, or the case is complicated and/or there are legal problems involving the estate, the legal fees on an hourly basis can mount up. This is especially true when there is litigation involved in the estate.

Percentage of the Estate

A second arrangement for legal fees concerning legal representation on an estate is based on a percentage basis. The legal fee can be a set fee such as 5% of the estate or it can be a percentage based on the amount of assets collected. An example of this would be 5% of the first $100,000 of assets, 4% of the next $200,000 of assets, 3% of the next $700,000 of assets, and 2% of the next $2,000,000 of assets. In these cases, the fee can easily be calculated and the client is aware of a definitive amount this legal representation will cost based on an estimate of the value of the estate. In these percentage cases, it is assumed the attorney will do virtually all of the work on the estate administration and the executor will just sign documents provided to him or her by the attorney.

Set Fee Arrangement

In some cases a set fee basis retainer agreement is entered into between the client and the attorney. It can usually be undertaken where the issues are not complicated, none of the potential beneficiaries are unknown or missing and there are no minors involved in the estate. A common situation where this type of retainer agreement can be used is where the individual who died was survived by his or her spouse and children. There is usually an exception in the set fee estate retainer agreements if litigation and/or unusual problems occur. Flat fee retainers usually spell out the specifics of the legal work involved and the additional circumstances which might require further legal fees.

Conclusion

If you approach an attorney with regard to legal representation on an estate, you should discuss the legal fees prior to retaining the attorney.

Revoking a Will

wills and estates attorneyGerace brought a petition to probate a Will. The decedent’s mother in this case filed objections in this proceeding. She claimed the Will had been revoked 4 years after it had been executed. The decedent had written on the top of the Will “worked to revoke it.” Gerace claimed this was a revocation of the Will. Surrogate Louis Gigliotti sitting in Oneida County noted the Will was handwritten and on top of the Will was the handwritten notation referring to a “new” Will. Gerace took the position that he was the decedent’s attorney from 1995 until her death. He saw her at least twice annually, but at no time did she indicate she wanted to make a new Will or revoke the prior Will.

The second issue presented to the court was did the decedent’s actions cause the cancellation of the Will. The court took into consideration there was no burning, tearing, cutting or mutilation of the Will. Judge Gigliotti took the position that in the event the words on top of the Will were written by the decedent, those handwritten notes on the Will did not act to revoke the Will. Surrogate Gigliotti stated that for the decedent to have written a new Will or modified the old Will, the new Will or the Will modifications would need to be done with the appropriate testamentary formalities. Since the testamentary formalities were not undertaken in this case, the decedent’s actions did not cause the revocation of the prior Will and the Will should be admitted to be probated.

Conclusion

Should you wish to withdraw or modify or revoke a Will, hire an attorney to take the appropriate action to write a new Will and cause the revocation of the prior will. New York State requires testamentary formalities with regard to the execution and/or revocation of Wills and those testamentary formalities must be correctly adhered to.wills attorney in New York

Requirements When Preparing a Will

To watch today’s video blog, please click on the link below:

https://youtu.be/pUnOQlVlAkg

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He and his associates are available for consultation at 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.