Table of Contents
- 1 Estate Planning
- 2 Probate Litigation
- 2.1 Probate Litigation FAQ
- 2.1.1 What is probate?
- 2.1.2 Do all estates have to go through probate?
- 2.1.3 When can someone challenge or contest a will?
- 2.1.4 How do I determine if I have a basis for challenging or interpreting a will, or questioning the transfer of assets before the deceased died?
- 2.1.5 What if the will contains a provision that I will forfeit my rights under the will if I challenge it?
- 2.1.6 What is a guardianship proceeding?
- 2.1.7 How long does probate litigation take?
- 2.1 Probate Litigation FAQ
- 3 Hiring Estate Planning Attorneys
- 4 Resources
- 5 Helpful Forms
- 6 Recommended Reading
Our estate planning attorneys help clients preserve their financial wealth and their legacy for future generations. Simply put, we are honored to help our clients protect the people they love. Our planning methods give special consideration to life’s unexpected risks by tailoring our Living Trusts, Wills (simple and complex), Powers of Attorney, Living Wills, Irrevocable Trusts, and Charitable Gifting Strategies to anticipate and plan.
We help our clients achieve their goals which typically include minimizing estate taxes, avoiding the expense and delay of the probate process, protecting a surviving spouse who later remarries or becomes incapacitated, as well as the children of earlier marriages, and finally, protecting beneficiaries from possible future risks to their security (such as from creditors or difficult marriages).
We also work with business owners in planning for the succession of what is often their life’s work. Business owners have special planning needs. With proper planning, a business owner who wishes to sell his business or retire (voluntarily or not) can often avoid family strife and minimize estate taxes, while maximizing the value of the business as it passes to the next generation – either intact or converted to cash or an income stream. If properly structured, these transactions can provide for retirement income, reduced income, and estate taxes and even – if desired – fulfill charitable inclinations. If your business plan ignores these planning possibilities, you are missing out on a tremendous opportunity to minimizing taxes, while putting your business at risk for its continued growth and even survival. Two out of every three family- owned businesses do not survive the first generation – most often because these owners did not plan.
As part of our mission to help protect our clients and their families, we believe that good estate planning is much more than preparing a Last Will or a Trust. It should also:
- Include instructions for your care if you become disabled before you die.
- Name a guardian (a physical caretaker) and a trustee (a financial caretaker) for minor children.
- Provide for family members with special needs in a way that will not interfere with their government benefits.
- Thoughtfully consider and provide for loved ones who might be irresponsible with money or who may need future protection from difficult marriages or creditors or even substance abuse issues.
- Consider the appropriateness and need for life insurance to protect your family at your death, as well as disability income insurance to replace your income if you cannot work due to illness or injury, and long-term care insurance to help pay for your care in case of an extended illness or injury.
- Leave a letter of instructions and information for your family so that they can easily and readily step in when the need arises. Our Family Letter can be found here (PDF download).
- Have a plan to provide for the transfer of your business at your retirement, disability, or death.
- Minimize taxes, delays in the transfer of your legacy, Surrogate’s fees and unnecessary legal fees.
- Be an ongoing process, not a one-time event. Your plan should be reviewed and updated as your family and financial situations (and laws) change over your lifetime.
We are glad to meet with you in our Hackensack or Manhattan offices and learn more about you and your family so that we can help you to provide for and protect them when the need arises.
For more information, or to schedule an appointment with us, please call us at (551) 228-2276. We would be pleased to hear from you.
A will is our plan for what will happen to our property after we die. Usually, the will is a formal document written and signed by the deceased with the attestation of at least two witnesses. It appoints an executor whom we select and controls how our executor is to distribute the property among our beneficiaries. In the absence of an enforceable will, the distribution our estate will be distributed in accordance with the laws adopted by our legislature, which is referred to as intestate distribution. Typically, a close relative is appointed as the administrator of an intestate estate.
Wills and probate involve many technical but critical issues. The failure to recognize the potential risks and consequences could ruin your estate plan or cause your heirs to argue and disagree, which threatens the foundation of the family and the fabric of relationships.
Probate litigation is what ensues if your will is not carefully drafted or if one of your heirs is able to contend that you were under the influence of others when you made your will. If you have a large estate, substantial investments or properties, or bank accounts, then you are more likely to be engaged in probate litigation. This is the process by which the Probate Court, following detailed laws that set forth the rights and responsibilities of heirs, executors, and administrators under wills, trusts, and intestate estates. Under the probate laws governing probate litigation, a Probate Court will identify the assets of the deceased, approve the payment of taxes and other incidental expenses, and determine what the will or the law requires for the distribution of the deceased’s property among the legal heirs as mentioned in the will or pursuant to the laws governing intestate distribution.
In short, probate litigation is generally the same as a “will contest” or a lawsuit “contesting a will.” Although a more carefully drafted will by an experienced and knowledgeable probate attorney can minimize the likelihood of probate litigation, any dissatisfied heir has the right to commence a lawsuit. The most commonly asserted grounds for contesting a will, or challenging the actions of an executor, or obtaining relief from an administrator are:
- Claims of undue influence or duress in execution of the will or trust agreement
- Contradictory, ambiguous or unclear provisions in the Will.
- Self-dealing or waste of estate assets by an executor or administrator.
- Differences of opinion over guardianships or conservatorships
- Breach of fiduciary duty.
- Failure of an heir or beneficiary to cooperate with the executor or administrator.
- Disputes as to who can act as the executor or administrator.
The lawyers at Gartenberg Howard have extensive experience in representing heirs and beneficiaries in will contests and other probate litigation, including guardianships, competency proceedings, and trust disputes. We can properly and fully advise you as to your rights and obligations, as well as the risks and potential outcomes, whether you are acting as the executor or administrator or are an heir or beneficiary who believes that something is wrong with the will or with the actions or omissions of the executor, administrator or other beneficiaries.
Probate Litigation FAQ
What is probate?
Probate is a proceeding in the Surrogate Court for the administration of property that passes by a will or through intestacy. The probate process serves three primary purposes:
- to make sure any will is valid or to allow an intestacy proceeding;
- to deal with creditors of the estate; and
- to transfer the property to the heirs in accordance with the deceased’s wishes or pursuant to the probate law.
Do all estates have to go through probate?
Whether you need to go through probate depends on the extent of the deceased’s assets, the comprehensiveness of the deceased’s estate plan, and the type of assets to be distributed. Also, if the value of the estate is very small, you may not need to file for probate.
The determination of these issues is far from straightforward. Even if you’re convinced that probate is not necessary, you should speak with an experienced probate attorney to make sure. Although most estates can be handled simply, failing to file for probate when necessary can lead to much more expense and frustration down the road.
When can someone challenge or contest a will?
Generally, an heir may challenge a will for:
- undue influence, such as when someone dictates the terms of the will for the decedent;
- unclear expressions of intent;
- mistake; or
- Lack of capacity (i.e., the decedent lacked a sound mind);
Will contests can be difficult and expensive. The standard for capacity is very low, requiring even less than is needed to make a contract. Undue influence is also hard to prove unless the person who exercised the influence held a position of trust with the decedent. You should speak with an experienced probate lawyer to determine whether you have enough evidence for a will contest.
How do I determine if I have a basis for challenging or interpreting a will, or questioning the transfer of assets before the deceased died?
Probate litigation is very fact specific. Each case depends on the particular facts involved, and the facts of every case are different. Some of the facts that may substantially affect the outcome of your case include:
- whether the decedent made a change or transfer as a result of the influence of someone on whom he or she depended;
- whether the deceased was dependent on the person who benefited from the change or transfer;
- whether interested persons witnessed the decedent make the change;
- whether the change in the will, the change in the beneficiary designation or the transfer was made shortly before the decedent’s death of the decedent;
- whether the deceased was incompetent;
- whether the deceased received independent legal advice before making the change.
What if the will contains a provision that I will forfeit my rights under the will if I challenge it?
Some wills include “forfeiture provisions,” usually called “in terrorem clauses.” It is possible that you can challenge the validity of such a will, or some aspect of it, and not forfeit your rights under the will but you should seek the advice of experienced counsel to help you understand how that clause may affect your rights. Q: In a dispute between relatives, is it always necessary to file a lawsuit?
What is a guardianship proceeding?
A guardianship proceeding is brought when a person is no longer capable of making financial or personal care decisions for him or herself. Such proceedings are brought in the Probate Court.
To establish a need for guardianship, you must establish, by clear and convincing evidence, that:
- the person is incapacitated, and
- the appointment is necessary to provide for that person’s financial or personal care needs; and
The court may appoint a family member or a professional to serve a the guardian, depending on the circumstances. A person who is ordered by the court to be in the care of a guardian is known as a “ward.” The guardian does not assume personal liability for the ward’s debts or assets, but the guardian must always act in the best interest of the ward.
How long does probate litigation take?
Most guardianships are decided in a matter of months, although if it is contested (that is, the proposed ward opposes the guardianship, or the family argues over who will be the guardian), the proceeding may take up to a year.
Most will contests resemble typical lawsuits, except that the option of a trial by jury is not available. These proceedings can take over a year and may require many court appearances as well as mandatory mediation and pretrial discovery.
Hiring Estate Planning Attorneys
The estate planning attorneys at Gartenberg Howard are here to assist with any estate planning needs including wills, trusts, and probate. Just give us a call at (201) 488-4644 or contact us using the form below. We offer a free initial consultation to ensure that all of your questions are answered prior to taking any action.
Goals & Objectives (PDF Download)
Estate Planning Personal Data Form (PDF Download)
Letter of Instructions to My Family (PDF Download)