It is well accepted law that an Executor of an Estate may use Estate assets to defend any challenges levied against the Will and any provisions contained therein. So long as what is challenged is the Will itself or a provision therein, an Executor may hire an attorney to defend the Estate. Any counsel fees incurred in defending against a challenge to the Will would be payable through the Estate by the Executor. On the other hand, there are limitations as to when an Executor may utilize Estate assets to defend against claims related to non-probate assets.
Upon the death a loved one, the Last Will and Testament governs how the liquid assets of an Estate are distributed. It is also common that the Last Will and Testament may provide instructions as the distribution of some of the personal property of the Decedent. Even under such circumstances, however, this often leaves a large amount of personal property which has to be divided among the living heirs. There are several different ways in which the remaining items of personal property of the Decedent can be distributed which is discussed below.
When an Executor named under a Last Will and Testament seeks to probate the Will of the Decedent, the original copy containing the original signatures of the Decedent must be submitted to the Surrogate’s Office. What happens, however, if the original copy with the original signatures cannot be located? Under such circumstances, the only option may be to seek to probate a copy of the original Will.
Should a person wish to file a Will contest, the first threshold issue which must be addressed is whether that person has standing to file a Will contest.
In general, “standing” means whether a Plaintiff legally has a right to bring a claim to contest a Last Will and Testament in the Court with jurisdiction to hear the matter. The spouse, child, or next of kin of the Decedent automatically have a right to file a Will contest, whether they are named within that instrument or not.
In addition to these family members, a beneficiary under a current or previous Will would also have standing to commence a Will contest. These individuals have standing to contest the current Will even though there may be no blood relationship between them and the Decedent. The rationale for granting these individuals standing is because if the disputed Last Will and Testament is invalidated by the Court, then the Court could require that the Decedent’s previous Last Will and Testament be admitted to probate. For a direct citation to the relevant Court Rule, you may refer to Rule 4:80-1 within the New Jersey Rules of Civil Practice and Procedure which governs standing to contest a Will.
Should a party wish to file a Will contest, they should consult with an attorney to assist them with the process. Standing is merely one factor to consider with regard to a party’s right to file the Will contest; however, it is a threshold issue.
One of the potential causes of action pursuant to which a party may seek to invalidate a Will is based upon an allegation that undue influence was exerted against the Decedent by a beneficiary to the disputed Will. Continue Reading Undue Influence in a Will Contest
Once a party has decided to contest a Will, the question then becomes what is the next step in this process. The first pleadings that Plaintiff’s counsel prepare for the Court are a Verified Complaint, as well as an Order to Show Cause.
In ruling upon the validity of a contested Last Will and Testament, there are numerous witnesses whom a Court may hear testimony from in deciding whether to invalidate the will. As is the case in any litigation, fact witnesses who possess relevant knowledge with regard to the facts and allegations set forth in the Complaint are essential witnesses. These witnesses may possess knowledge with regard to the mental status of the Decedent at the time the disputed Will was executed, the relationship that the Decedent shared with his family members, and other issues concerning the Decedent’s physical health and general appearance at the time the contested Will was executed.
In addition to fact witnesses Continue Reading Types of Witnesses During A Will Contest
In general, the funds within a joint account belong to the account holders and all account holders have the right to the entirety of the account. Should one of the joint account holders pass away, it is generally accepted law that the account would then pass to the surviving account holder(s). Under the Multi-Party Joint Deposit Account Act, this is typically what occurs should an account holder pass away; however, there are exceptions to this general rule of law.
Typically, the Executor of an Estate named by a Will has little or no prior experience in administering an Estate. As such, this somewhat complex process lends itself to the possibility of errors being made by the Executor or Executrix which could result in litigation. The purpose of this blog is to advise you as to some potential pitfalls to avoid if you are the Executor or Executrix of an Estate.
In many of my previous blogs I have discussed the procedure involved in contesting a Last Will and Testament. This blog shall focus on other side of the equation, the defense of a Will contest. Since there are many facets involved in the defense of a Will contest, we shall first focus on what the named Executor or Executrix must do upon being served with a Verified Complaint seeking to contest the validity of a Last Will and Testament. For the purposes of this blog, I will assume that the Executor had already taken the necessary steps to admit to probate the Last Will and Testament of the decedent.