Why Should You Have A Will?

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Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  Elliot and his associates have more than 100 years of combined legal experience representing clients with regard to all aspects of wills, trusts, and estate matters.

Executors and Estates

The individual named as the executor in a Will is entrusted with the assets of the individual who drafted the Will after the individual dies. The executor has responsibilities with regard to administrating the estate, accounting for its assets, paying taxes, distributing the assets of the estate, and dealing with a variety of other issues. Executors responsibilities have not changed in recent years. However, the responsibilities have become more complicated.

New Problems for Executors

In the past an executor would go to the decedent’s home, look for documents concerning assets, try to ascertain whether there was a safety deposit box, and by and large was usually able to locate documents that enabled him or her to determine what the assets of the estate were. This is no longer the case today. Many individuals maintain all of their financial documents online. An executor will usually not know the password or user names which would enable him or her to be able to get into these accounts. Obtaining access to a decedent’s digital information has become a major problem facing executors.

Easing Burdens and Responsibilities of Executors

The best way for an executor to ease his or her burdens is to hire a law firm which has a team of attorneys, accountants, paralegals, and other individuals who can help him or her carry out the responsibilities of an executor.

The following are a list of some of an executor’s responsibilities:

  • Probate the Will. The executor needs to find the Will, hire an attorney, and see to it that the Will is probated.
  • Collect assets. The executor must identify, collect, value and manage and safeguard all of the estate’s assets during the period of time the probate proceedings are making their way through the courts. This can include bank accounts, stocks, bonds, items in safety deposit boxes, household and personal effects, as well as out of state property, out of country property, digital assets and other items such as the decedent’s interests in other estates, trusts or litigation pending in the courts.
  • Filing tax returns. The executor must prepare and file all necessary estate tax returns.
  • Pay the debts and expenses of the estate. The executor must determine who the creditors of the estate are and see to it they are paid.
  • Distribution at the end of the estate. The executor must see to it the assets are appropriately distributed pursuant to the terms of the Will.

Conclusion

Executors have numerous responsibilities which should be taken seriously. These responsibilities in the digital age have become more complicated to carry out.attorney for the executor of an estate

Estate Litigation

estate litigation lawyerWhen someone dies their assets become the property of their estate. If the person who dies has a will, the individual in charge of carrying out the terms of the will is called an executor. The will names the person who will serve as executor. The will usually names an alternate executor if the first named executor is unable to serve.

Will Disputes

Sometimes there are disputes among loved ones, friends, and/or family members regarding issues involving the preparation of the will and/or the terms of the will. When disputes occur between beneficiaries or heirs regarding the terms of a will, a spouse’s right to inherit or issues involving the actions or lack of action of the executor, these disputes can result in estate litigation.

Amicably Resolving Estate Issues

Initially attempts should be made to amicably resolve all disputes to avoid an estate litigation lawsuit. Estate litigation will delay the beneficiaries’ receiving what they are entitled to under the terms of the will. It will also create extra expenses for the estate and other interested parties.

There are a variety of types of litigation which can occur in an estate. The following are a list of some of these types of litigation:

  • A will contest. This can involve a challenge to set aside the will. The grounds can be that the will was not properly executed. There can also be allegations of fraud, duress, lack of competency to make the will, undue influence, allegations the will was not properly signed, allegations the will is a forgery, and/or the will is not clear in its terms.
  •   Breach of fiduciary obligations. Executors of wills, trustees of trusts, and administrators of intestate estates (estates where there is no will), are all fiduciaries. They have an obligation to act in the best interests of the estate and are held to a very high standard concerning their actions. Fiduciaries can be removed for failure to properly act regarding the assets of the estate, mismanaging the assets of the estate, improperly taking the assets of the estate, and other reasons related to negligence or improper actions.
  • Challenges to trusts. If the terminology of the trust is not clear, legal action can be taken to deal with this issue.
  • Claims against estates. Lawsuits can be brought by creditors concerning money owed by the decedent to the creditors.
  • Wrongful death claims. Litigation can be brought by family members against persons, corporations or other entities who caused the death of the decedent. This can also include actions for medical malpractice. The proceeds received from wrongful death claims and medical malpractice awards become assets of the estate.
  • Accounting proceedings. These are proceedings initiated to force a fiduciary to produce financial information with regard to how the estate’s assets, investments, tax issues and expenses were dealt with during the term the executor managed the estate.
  • Guardianship proceedings. When parents die without leaving a will, or become unable to care for a child during their lifetime, guardianship proceedings become necessary to appoint a relative or other family member to take care of the child during the term of the child’s minority. Guardianship proceedings can also be brought for special individuals who may never become competent to take care of themselves. Guardianship proceedings can also be brought on behalf of seniors who develop infirmities with age and are unable to take care of themselves or their finances.estate litigation attorney on Long Island and New York City

How Estate Litigation Works in Surrogate’s Court – Part II

estate litigation lawyerThe Trial

The trial will either be conducted before a jury or by a judge. There are certain issues an individual can request a jury for. If the claims at trial are that the executor, administrator or trustee embezzled funds or acted improperly, the court can order that individual to repay the estate or the trust for the funds which were improperly taken.

Estate litigation is complex and emotional. It usually takes place between loved ones who have a dispute over money. The difference between estate litigation and divorces is that in divorces loved ones fight over their money and in estate litigation the parties are litigating regarding other people’s money. The best way to deal with estate legal problems is to hire an experienced, dedicated estates attorney. When hiring an attorney you should investigate his or her background to make sure they are the right person to handle your case.   You should discuss with the attorney how many Surrogate’s Court cases he or she has tried, what type of estate cases he or she has tried and the results in these cases.

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.  He has been handling estate litigation, wills, trusts and other issues pertaining to estate planning for more than 35 years. estate and trust attorney

 

How Estate Litigation Works in Surrogate’s Court – Part I

The individual who files a lawsuit against an estate must prove to the court they have a sufficient basis for the lawsuit. Oftentimes individuals come into our office who are unhappy with someone’s will. They seek to challenge the will because they were either left out of the will or didn’t receive their fair share. Unfortunately, being unhappy with the terms of a will or not receiving one’s fair share is not considered a legal basis for challenging the will. There are specific grounds for challenging wills such as lack of mental capacity, undue influence, fraud, or duress. These legal theories are generally the basis for challenging a will.

Court Attorneys In Surrogate’s Court

When lawsuits are started in the Surrogate’s Court, the Surrogate’s Court sometimes appoints a court attorney to meet with the litigating parties to see if the matter can be mediated. Litigation is time consuming and expensive. Courts hope to promote settlements of cases to avoid cases going to trial.

If the case does not settle, there is an initial period during the litigation where each party can obtain discovery of information from the other party. Discovery demands can ask questions, ask that medical records and other documents be produced, and can go into the family background of the parties.

After the discovery period of the litigation is finished, the parties may engage in motion practice in Surrogate’s Court. If there is a will, a fiduciary can make a motion for summary judgment claiming the allegations made by the individuals challenging the will are false, without validity and the matter should be decided without the need for a trial.trusts and estates lawyer

Dying Without a Will – Who Inherits?

When an individual who has not written a will dies, it is said he or she died intestate. Intestate succession in New York State deals with the distribution of assets as follows:

 

  • If the individual who dies did not have a spouse at the time of his or her death, and he or she had children, the children would inherit all of the assets.
  • If the individual who died had a spouse and no children, the spouse would inherit everything.
  • If the individual who died had a spouse and children, the spouse would inherit the first $50,000 of the decedent’s assets, and 50% of all other assets of the decedent.
  • If the individual who died had parents who survived him or her and no spouse and no children, the parents would inherit all of this individual’s assets.
  •   If the individual who died had no parents who survived him or her, no spouse and no children, but had brothers and/or sisters, the brothers and/or sisters would receive all of the assets.
  •   If the situation gets beyond this point you should hire an estates lawyer to go through a more detailed inheritance chart.

Assets Which Pass Outside of an Individual’s Estate

Many assets do not pass under an intestate estate if the individual dies without a will, or pursuant to the terms of a will even if an individual who dies has a will. These types of assets are referred to as testamentary substitutes, which do not pass either by intestate succession or pursuant to the terms of a will. The following is a list of some testamentary substitutes which would pass outside of an individual’s estate:

  • The proceeds of life insurance contracts
  • Funds maintained in a pension, IRA, 401(k), 403(b) or other retirement accounts which has an internal beneficiary designation related to the account
  • Assets maintained in a living trust
  • Bank accounts and/or securities held in transfer on death accounts
  • Property you own pursuant to a joint tenancy or a tenancy by the entirety (tenancy by the entirety applies to property owned by a husband and wife)

Dealing With Estate Issues

Most individuals do not understand estate succession laws and the complexities involved in the transferring of assets in estates. In the event a family friend, loved one, spouse, child or other individual who was close to you passes and you feel you are entitled to an inheritance from this individual, the best way to see to it your inheritance rights are protected, is to hire an experienced estates lawyer. The estate lawyer’s job will be to see to it all of your rights to inherit are protected.wills and trusts lawyer

Estate Litigation – Part II

The second most common estate challenge deals with improper transfers of assets during the lifetime of the decedent. After an individual dies, questions as to the validity of transfers of assets during the decedent’s lifetime sometimes occur. The most common manner in which the funds of a decedent are improperly transferred involves the improper actions taken with a power of attorney. This may be through an individual taking funds from a joint account which was opened solely for the convenience of assisting the senior in paying bills and dealing with normal daily expenses.

Power of Attorney

It should be noted a power of attorney is a document in which one person authorizes another individual to act on their behalf with regard to financial matters. Sometimes powers of attorney are improperly utilized to improperly take funds from a senior by the individual with the power of attorney ingratiating themselves to the senior’s detriment. A method of improperly utilizing a power of attorney is to have the individual who has the power pay his or her bills from the seniors assets. Another inappropriate action sometimes involves the transferring of real estate under the power of attorney to the benefit of the individual holding the power of attorney. This can be considered the improper converting of assets of the senior. This is a violation of the fiduciary obligations of the individual holding the power of attorney.

Improper Estate Administration

The third most common issue which is litigated in estates deals with the improper administration of the estate. Sometimes the fiduciary, whether it be an executor or an administrator, acts in a manner which is detrimental to preserving the assets of the estate. In these cases, beneficiaries’ rights can be compromised unless legal action is taken. Beneficiaries are entitled to a copy of the decedent’s last will and testament and an accounting as to what took place during the course of the administration of the estate. There are proceedings called accounting proceedings which can be brought on behalf of beneficiaries which allows the investigation by the attorney for the beneficiary to look into what actually transpired during the period of the administration of the estate.

Experienced Estate Attorneys

In the event either you, a loved one, family member, or friend have an issue with regard to any aspect of an estate, the best way to see to it your rights are protected and any funds you are entitled to come into are properly dealt with is to hire an experienced estates attorney to protect your rights.estate attorney

Estate Litigation – Part I

trusts and estate attorneyThere are a variety of situations which result in litigation of estate related matters. The first, and most common, case which is litigated in the Surrogate’s Courts in New York State is a will contest or the challenging of a trust. The most common reason for challenging a will or a trust is lack of testamentary capacity or undue influence.

Testamentary Capacity

Testamentary capacity deals with whether the person making the will had the capacity to make the will on the day the will was executed. This challenge deals with the person who made the will’s understanding of what they were doing, who were the natural objects of their bounty, and the impact this will would have on the testamentary scheme.

Undue Influence

Undue influence deals with a situation where the person making the will has a diminished capacity. Another individual improperly influences them for the purpose of ingratiating themselves. Sometimes undue influence is based on either overt or perceived threats or intimidation.

Setting the Will Aside

Setting a will aside on either the basis of lack of testamentary capacity or undue influence requires the individuals challenging the will to produce documentary evidence proving their claim. Examples of the type of evidence utilized in these cases are medical records, records from pharmacies, financial documents, and testimony of third parties or other family members with regard to the circumstances and events concerning the decedent at the time the will was prepared and executed.

Altered Documents

Other types of proceedings brought to challenge wills deal with forgeries, improper alterations or modifications to the will, and questions concerning the improper destruction of the will, sometimes even after the decedent’s death.wills and estates lawyer

Litigating Issues Involving Wills And Other Assets Taking Advantage Of The Elderly and Infirm – Part III

Fraud involves a situation where there has been a material misstatement of facts that the individual preparing a document such as a will, a trust or opening a joint bank account believed to be true. In this situation even the acts of competent individuals can be tricked into transferring assets or changing the individuals named on bank accounts or other estate planning documents. Here again, the persons challenging the transaction stating the action was impacted on by fraud, have the burden of proof.

Convenience Accounts

Sometimes when seniors get old, they have the inability to handle their finances. In these situations they will put a loved one, friend or child on the bank account solely for the purpose of helping them pay their bills. In these convenience accounts situations, the person who is put on the account was not intended to be a beneficiary should the maker of the account die. In situations where the person who was put on the bank account was not intended to inherit but was only there for convenience purposes of assisting the individual who died, the transaction can be shown to be simply that, a convenience account and not a situation where the other individual on the account should inherit. It is important in these situations that it be proved the intent of the individual who added the other person to the bank account was solely for convenience purposes.

Lack of Testamentary Formalities in Creating a Will or a Trust

In the State of New York there are very specific requirements to write a will. A will must be executed in front of two witnesses. The person making the will must publish to the witnesses that this is his or her will. The will must be signed at the end by the individual making the will and the witnesses must witness the signature of the person making the will and the signatures of the other witness. The witnesses must stay in the room the entire time for the duration of the will execution ceremony. The individual making the will must know what the actual objects of his or her bounty are and numerous other requirements. Violation of any of these requirements to make a will in the State of New York is a basis to set the will aside.

Probate Litigation, Estate Litigation and Family Feuds

Most estate contests involve litigation between family members. Unfortunately, a loved one dies and then the fight over his or her money or other assets ensues. Sometimes, these estate issues can be resolved amicably through negotiations between counsel for the various parties. However, if these issues cannot be amicably resolved, it is extremely important to quickly take the appropriate legal action in the Surrogate’s Court in New York to protect the interests of those individuals being deprived of their inheritance. It is extremely important whether you are an administrator, executor, or beneficiary of a will, trust, bank account, other investment vehicle or real estate, that you know your rights. The best way to be successful in these endeavors, is to hire an experienced, qualified estates lawyer to explain your rights to you and provide remedies to you when necessary.

Conclusion

Shakespeare said “money is the root of all evil”. Unfortunately when a loved one, friend, or family member dies, greed can sometimes become the moving factor which tears families and loved ones apart. Greed motivates individuals to take improper action sometimes to obtain a greater portion, or a portion of the decedent’s assets they were not entitled to. Having the best legal representation is clearly the best way to deal with these issues.estate and probate litigation attorney

Litigating Issues Involving Wills And Other Assets Taking Advantage Of The Elderly and Infirm – Part II

probate litigation on Long IslandUndue Influence

Undue influence occurs in situations involving emotional or physical coercion. Threats, flattery and excessive action to persuade an individual to the point where that person no longer has a freedom or will on their own to make decisions as to who should receive their assets, are all examples of undue influence. When the beneficiary, either through a will or of a joint account, is an individual who had power of attorney, was the actual attorney for the individual, or was in a position of trust or confidence such as a caregiver, a presumption of undue influence can arise with regard to transactions which enrich these individuals.

Incompetence

The basic test for incompetence was whether at the time the individual wrote the will or changed the bank account, he or she understood the nature of the document or transaction which was involved and who the actual beneficiary would be. As individuals grow older, situations involving dementia and Alzheimer’s disease are more common. Sometimes an individual’s memory fails due to age, Alzheimer’s disease or dementia. These individuals can have days where they know what they are doing and days when they don’t. In these cases, it is necessary to obtain the medical records of the individuals who have made the will or transferred the joint bank accounts and sometimes hire expert witnesses to testify in court proceedings with regard to the level of competence the individual had at the time the will provisions were made or the bank accounts were transferred. In addition to medical witnesses, friends, family members and others who interacted with the senior can testify as to their experiences concerning the mental competence of this individual. The law in New York presumes everyone is competent to make a will, a trust, or to put another individual on their bank accounts or other investment accounts. The individuals challenging the transaction have the burden of proof to convince the court to set the transaction aside due to the incompetence of the individual undertaking the transaction.estate litigation attorney