Probate Litigation

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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.

Continue Reading The Multi-Party Joint Deposit Account Act

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.

Continue Reading Common Pitfalls Made by Executors of Estates

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.

Continue Reading Defending a Will Contest

Stark & Stark Shareholder Paul W. Norris authored the article “Contesting a Will: Best Practices for Successful Probate Litigation,” which was published on NJ.com on June 24, 2016. The article explains the process of what typically will happen if a will is contested after a loved one passes away. This process can only begin once “the named executor or executrix in the will then files this document with the county surrogate.” This process is called “admitting the will to probate,” and starts a process on a specific time schedule that must be followed in order to properly submit any contestations of the will.

Continue Reading Potential Issues That May Arise When Contesting a Will

In general, if there is a personal injury action concerning the death of the Decedent it is typical that two types of claims are asserted in this action. The first claim is typically a wrongful death claim, and the second claim may be a survivorship claim. In general, the survivorship claim is distributed in accordance with the Decedent’s Last Will and Testament. Thus, the proceeds from the settlement or judgment are typically paid to the beneficiaries of the Decedent’s Estate in the percentage set forth under the Last Will and Testament. That is because the survivorship claim is deemed to be property of the Decedent’s Estate. The other claim which is brought, the wrongful death claim is not distributed in the same fashion to heirs of the Estate.

Continue Reading Distribution of Personal Injury Proceeds to Heirs of a Decedent’s Estate

If you are the beneficiary of an Estate where a Decedent recently passed away, you will undoubtedly like to know when you will receive your bequest under the Decedent’s Last Will and Testament. What you should be aware of, however, is that there are a multitude of steps that must occur before distributions can be made under a Last Will and Testament.

The first necessary step is that the Decedent’s Will must be admitted to probate. This would be done by the named Executor in the Will, and thereafter, the Executor would be appointed by the Surrogate to serve as the Executor of the Estate. The next step would be for the Executor to marshal all available liquid assets of the Estate and deposit them into an Estate account, or simply discover the location of the assets if they exist in the form of stocks, bonds, or other investment vehicles. Once this has occurred, the Executor will typically prepare an informal accounting, which will be provided to the beneficiaries of the Estate.

Continue Reading When Do I Receive My Share of the Estate

If a party has decided that it would like to Contest a decedent’s Will, the next question that arises concerns the appropriate venue to file the Will Contest. The general rule, as set forth by Rule 4:80-1(c), is that a Will Contest must be commenced in the State and County where the decedent died a resident. As such, if a person passed away as a resident of Mercer County, then the Will Contest must be commenced in the Mercer County Superior Court. There are, however, exceptions where a non-resident decedent may be subject to a Will Contest within the State of New Jersey.

This Rule provides that even if a decedent is not domiciled in the State of New Jersey, a Will Contest may still be commenced in the County where the decedent left any property or into which property belonging to the decedent may have come since his death. The only caveat to this exception would be if a Will Contest or action to probate a Will in another jurisdiction had already commenced. Under those circumstances, the Will Contest would have to take place in the foreign jurisdiction. If that had not already occurred, however, a party may commence a Will Contest in the State of New Jersey, provided those conditions have been met. As will be discussed in another Blog, whether a decedent is considered a resident of the State of New Jersey or another jurisdiction can often be the subject of litigation.

In general, the time limitation to file a lawsuit in the State of New Jersey is quite lengthy. For instance, an action related to a Breach of Contract matter would extend for six years from the date of the breach, whereas a Personal Injury matter may be filed two years after the cause of action accrued. With regard to a Will Contest, however, the period of time to file a lawsuit is actually quite short.

Rule 4:85-1 governs the time period pursuant to which a Will Contest must be commenced. In general, if you are an in-state party that time period begins to run four months after the probate of the Will or the granting of letters of appointment by the Surrogate. If you are an out-of-state party, that period begins to run six months after the probate of the Will or the granting of letters of appointment by the Surrogate. As such, the time period to contest a Will is extremely short based upon the confines of Rule 4:85-1.

It should be noted, however, that the Court can extend the time period for thirty days pursuant to Rule 4:85-2, based upon a showing of good cause. For the most part, the Court is willing to grant a thirty-day extension in light of the short time period set forth by the statute.

Continue Reading Time to File a Will Contest

In the recent Appellate Division case of In Re Sogliuzzo, the Appellate Court awarded counsel fees to the Estate to be paid by Defendant. This was due to the Defendant’s unlawful misappropriation of funds from his elderly mother, which he accomplished by exerting undue influence over her in order to facilitate the transfer of the funds. This case is the inverse of a typical challenge to a Will, wherein counsel fees are paid by the Estate to the contestant.

In this particular matter, which is much less common, the Estate was awarded counsel fees for prosecuting an undue influence action against the wrongdoer pursuant to which it was forced to incur counsel fees and costs in prosecuting the action. The Appellate Court found that Defendant’s exertion of undue influence over his mother, pursuant to which he obtained a substantial financial benefit for himself, met the rationale for an award of counsel fees.

Thus, Defendant was ordered to pay counsel fees to the Estate for the costs it incurred in bringing this action. The Court rationalized that this was the only way to make the estate whole due Defendant’s defalcation.

Continue Reading Fee Shifting in an Undue Influence Case

In the recent Appellate Division decision of In the Matter of the Estate of Michael Fisher, the Appellate Court reviewed whether the Appellant and father of the Decedent, Michael Fisher, would be entitled to an intestate share of his deceased son’s estate. The main issue before the Court was whether or not the Appellant had forsaken or abandoned his son, and as a result, he would not be entitled to an intestate share of his estate under N.J.S.A. 3B:5-14.1.

This statute provides in relevant part that if a parent refused to acknowledge and/or abandoned the Decedent when he/she was a minor by willfully forsaking the child, then the aforementioned parent would not be entitled to an intestate share of the Decedent’s estate. The Appellate Division explained that the application of this statute is factually sensitive.

In this matter, the Court concluded that a parent may lose his or her right to intestate succession if this parent abandoned the Decedent when he or she was a minor by: (1) willfully forsaking the Decedent; (2) failing to care for and keep control and custody of the Decedent so that the child was exposed to physical and/or moral risk without proper and sufficient protection; or (3) by failing to care for and keep the control and custody of the Decedent which resulted with the child being left in the care and custody and control of the State at the time of death.

Continue Reading Parent’s Right to an Intestate Share of their Child if the Child was Forsaken by the Parent