Estate | Commercial | Real Estate
Big Firm Credentials, Small Firm Attention
An estate, commercial and real estate law firm
You should encourage your relative or friend to meet with an attorney. If you think you could be a beneficiary of his or her estate, you should not encourage them to use your attorney. You should encourage them to meet with an attorney that has not represented you and is otherwise independent. Our firm can draft basic wills, but we focus on litigation. If you contact us, we will discuss with you what you should do, or what your friend or relative should do, and if we cannot represent your friend or relative, we will recommend independent counsel to do so. If you and the Testator (the person making the Will) meet with an attorney, the attorney absolutely should meet with your friend or relative alone, without the beneficiary present, and if the attorney does not do that, then you should make sure your friend or relative sees a different attorney. If you would like us to meet with you or the person who needs an estate plan, you are welcome to contact our office.
This questionnaire is not intended to give legal advice, and it may not have answered all of your questions. You may also want to start the questionnaire over to try a different path. Please contact us to discuss your matter if you have further questions or if you believe we may be of help to you.
In many cases, your attorney’s fees may be paid by the Estate, especially if you present a Will that you reasonably believe is the valid Will, or if you reasonably believe the probated Will is invalid because of undue influence or the incapacity of the person who executed the Will.
We can be reached by filling out the form below and clicking the next button, by submitting an email, or you may also certainly contact us by phone at 609-904-5653.
So long as that attorney followed the applicable statute and was independent, the Will is likely valid and defensible. However, even a Will that is valid on its face can be challenged if the person who signed it was unduly influenced or incompetent/incapacitated. To learn more about this topic, click here, or by contacting our office to discuss your concern. It also is prudent to have the person signing the Will meet with a medical provider to further confirm the testator had capacity. If you are concerned that the Will, even though prepared by an attorney, may not be valid, you should contact us to discuss if further.
If you are the Executor of the Estate, or the potential Executor of the Estate, you are a fiduciary. Once appointed, you have a fiduciary duty that includes, but is not limited to, a duty to probate the will, collect the assets, invest prudently, maintain an accurate account of the finances, communicate with the beneficiaries, defend the will from attack, and ultimately distribute according to the Will. You also have a duty not to make decisions that only benefit yourself rather than the Estate. The expenses of the Estate should be paid by the Estate, and as long as you did not participate in any wrongful conduct in the creation of the Will, attorney’s fees incurred in defending the Will almost certainly will be the responsibility of the Estate and not you personally. Although our firm sometimes administers estates, we very much focus on litigation or potential litigation, and we defend Executors and Wills from attack for claims of undue influence, incapacity or improper accounting. [pop up to undue influence/incapacity page]. In many instances, the cases we handle are referred to us by other attorneys who focus their practice on administering “uncontested” estates, while we focus on “contested” estates. If you believe your Will or Estate may be contested by a potential beneficiary, or if the challenge is already underway, you are welcome to contact us to discuss your matter.
The ideal Will is one that is prepared by independent counsel signed by a competent testator free of undue influence with two witnesses and a notary. It is true that a Will can be valid even if it is not prepared by an attorney, and it is also true that a Will can be valid under some circumstances even it is not signed with appropriate formalities. This includes holographic wills N.J.S.A 3B:3-2 (handwritten) https://law.justia.com/codes/new-jersey/2013/title-3b/section-3b-3-2 or those not signed with the required formalities N.J.S.A. 3B:3-3 https://law.justia.com/codes/new-jersey/2013/title-3b/section-3b-3-2/. If you have a question about the validity of a Will, or if you suspect a Will may not comply with the formalities required by the statute, you should consult with counsel.
A person can be occasionally confused and forgetful but still be able to make a Will. The gauge of testamentary capacity (the ability to make a Will) is “whether the testator can comprehend the property he is about to dispose of; the natural objects of his bounty; the meaning of the business in which he is engaged; the relation of each of the factors to the others, and the distribution that is made by the will.” To learn more about this, click here. If you believe someone is truly incompetent or incapacitated, and you are related to them or close to them, you may be able to apply (and should apply) for Guardianship. You may or may not be the Guardian, the Court will decide that issue. This process is guided by Court Rule 4:86. https://njcourts.gov/attorneys/assets/rules/r4-86.pdf . A guardianship application may limit the person’s ability to create a new Will if they are ultimately found to be incapacitated. It may also prevent further dissipation of their assets, and the Court will appoint people (usually attorneys) to investigate the person’s finances, mental state, and living arrangements. The Court may consider a Guardianship of the person and property, or a limited guardianship relating to only certain aspects of their life. Our firm can help you decide the best course of action. If the person is, in fact, incapacitated, the Court will order the costs and fees be paid by the person declared incapacitated, if they have the funds.
If the person is not incapacitated (i.e. they are generally competent), and if there is no crime being committed (theft, fraud), then it can be challenging to find the right solution. A person has the right to dispose of their assets, as they see fit, during their lifetime and after their death. However, this does not mean nothing can be done, or that you should do nothing. If there is a person potentially taking advantage of someone, or a person is competent but sometimes confused or vulnerable, you may be able to convince them to enter into a Conservatorship. The Court will appoint someone to manage the person’s finances and to handle other matters for their protection. Court Rule 4:86-11. https://njcourts.gov/attorneys/assets/rules/r4-86.pdf. We understand every situation is unique, and different approaches are needed to solve different problems. Sometimes a letter or phone call from an attorney to the party acting suspiciously, or a meeting between the vulnerable person and the attorney, can start you down the path to a solution. Also, in extreme situations, where there may be theft or abuse, the police and various state and private agencies may be of assistance, including Adult Protective Services. https://www.state.nj.us/humanservices/doas/services/aps/
If the person has died, there are basically three ways property can pass to another person.
For assets that pass by operation of law or by contract, the gift still could be challenged if the person who is to receive it committed undue influence or if the person who died was incompetent when they decided to name the beneficiary or sign the document. It is also possible the beneficiary used his position as Power of Attorney or other Fiduciary status to direct the asset to themselves improperly. It may also be the case, particularly for checking accounts, that an elderly person placed someone on the account for "convenience", (to help write checks and pay bills), but did not intend the account to pass to the helper upon death. You may learn more about these issues by clicking here, or contact us to discuss whether there is a basis to challenge the gift and obtain the inheritance you believe should be yours.
If you are the Executor of the Estate, or the potential Executor of the Estate, you are a fiduciary. Once appointed, you have a fiduciary duty that includes, but is not limited to, a duty to probate the will, collect the assets, invest prudently, maintain an accurate account of the finances, communicate with the beneficiaries, defend the will from attack, and ultimately distribute according to the Will. You also have a duty not to make decisions that only benefit yourself rather than the Estate. The expenses of the Estate should be paid by the Estate, and as long as you did not participate in any wrongful conduct in the creation of the Will, attorney’s fees incurred in defending the Will almost certainly will be the responsibility of the Estate and not you personally. Although our firm sometimes administers estates, we very much focus on litigation or potential litigation, and we defend Executors and Wills from attack for claims of undue influence, incapacity or improper accounting. You can learn more about these issue by clicking here, or by contacting our office to discuss your concern. In many instances, the cases we handle are referred to us by other attorneys who focus their practice on administering “uncontested” estates, while we focus on “contested” estates. If you believe your Will or Estate may be contested by a potential beneficiary, or if the challenge is already underway, you are welcome to contact us to discuss your matter.
You almost certainly must submit your Will for probate. If a person is in possession of an arguably valid Will, it should be presented to the Court for probate. It actually may be considered a crime to conceal or destroy a valid Will. N.J.S.A 2C:21-3 https://law.justia.com/codes/new-jersey/2014/title-2c/section-2c-21-3/. The court will decide which Will is the correct Will.
There are a number of ways to challenge a Will or Trust if you do not believe it represents the true wishes of the testator. A Will can be challenged if the person who executed the Will was incompetent or incapacitated. A Will can be challenged if the person was subjected to undue influence, meaning the terms of the Will represent the desires of someone other than the testator. A Will can also be invalid if it was the product fraud, forgery or mistake. You can learn more about these issues by clicking here, or by contacting our office to discuss your concern.
In some instances, such as a surviving spouse or a child from a prior marriage, a person may be entitled to a share of the estate even if they are excluded from the Will, or if they are not given enough assets under the Will. This includes, among other things, the Elective Share Statute N.J.S.A. 3B:8-1 (providing the spouse 1/3 of the augmented estate) https://law.justia.com/codes/new-jersey/2013/title-3b/section-3b-8-1/ and the Omitted Child Statute (addressing children born after the Will and omitted from the Will) https://law.justia.com/codes/new-jersey/2013/title-3b/section-3b-5-16/. If you are a close relative or spouse, and were omitted from the Will, it is always prudent to speak to an attorney
If an Executor or other Fiduciary is handling the estate improperly, you may be able to remove the Executor or Fiduciary. You may also object to the Executor or Fiduciary the Court intends to appoint. To learn more about removing or objecting to a fiduciary, click here
An Executor/Fiduciary has a duty to keep the beneficiaries reasonably informed and to “account” to the beneficiaries. This means they have to explain all of the assets they identified, and explain all of the expenses, and then describe the intended distribution of the assets. This process is controlled by Court Rule 4:87. https://www.njcourts.gov/attorneys/assets/rules/r4-87.pdf. You will have an opportunity to object to the accounting if you believe anything was done improperly or was omitted. Our firm can assist you with a demand for an accounting, and pursue any objections to the accounting. If the accounting discloses improper conduct by the Executor/Fiduciary, the Court has the discretion to compel the Estate to pay the costs and fees incurred to demand and object to the Accounting.
If you are the Executor of the Estate, or may later become the Executor of the Estate, you must understand the meaning of "Fiduciary Duty". (If there is no Will, the person is called an "Administrator") Once appointed, you have a fiduciary duty that includes, but is not limited to, a duty to probate any will, identify and collect the assets, invest prudently, maintain an accurate account of the finances, file tax returns, communicate with the beneficiaries, defend any will from attack, and ultimately distribute according to the Will or Intestacy Statute, as the case may be. You also have a duty not to make decisions that only benefit yourself rather than the Estate. The expenses of the Estate should be paid by the Estate, and as long as you did not participate in any wrongful conduct in the creation of the Will or administering the Estate, attorney’s fees incurred in administering the Estate or defending the Estate from attack almost certainly will be the responsibility of the Estate and not you personally. Although our firm sometimes administers estates, we very much focus on litigation or potential litigation, and we defend Executors and Wills from attack for claims of undue influence, incapacity or improper accounting. You can learn more about these issue by clicking here, or by contacting our office to discuss your concern. In many instances, the cases we handle are referred to us by other attorneys who focus their practice on administering “uncontested” estates, while we focus on “contested” estates. If you believe your Will or Estate may be contested by a potential beneficiary, or if the challenge is already underway, you are welcome to contact us to discuss your matter.
The fact that you were not appointed the Executor in the Will does not mean you have no control over what happens or does not happen in the Estate. Beneficiaries have the right to challenge the validity of the Will, to demonstrate it was the product of undue influence, incapacity or other wrongful conduct. So long as your challenge is found by the Court to be reasonable, the Court is likely to require the Estate to pay your reasonable attorney’s fees. The Beneficiaries also have the right to be kept reasonably informed and to demand an accounting of the assets, or to claim certain assets were transferred by the Decedent prior to their death for improper reasons, thus eliminating it from the Estate that passes through the Will. If you are concerned that the Will is invalid, or if you believe assets are not in the Estate that should be, or if you are of the opinion the Executor obtained their position improperly or is conducting themselves as Executor improperly, you are welcome to contact our office to discuss the matter further.
Δ
