After grieving the death of a loved one, the decedent’s heirs of the estate must go through the process of administering the will and distributing the decedent’s assets. In order to accomplish this process, an executor of the estate is typically appointed by the will or the heirs of the estate. Hopefully, the distribution of the estate goes smoothly, but at times, issues arise if the executor is either dishonest or fails to perform the duties required of an executor. The question then becomes, “What can be done in order to force the proper administration and distribution of the estate?”
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Probate Litigation
Intestate Estate: Dying Without a Will
Although many of us have estate plans well in advance of the time that we pass, it is not uncommon for an individual to die without having a last will and testament. This can often happen if the person who passes is younger, the death happens at an unexpected time, or is due to an unexpected event. …
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Undue Influence as a Challenge to Lifetime Gifts
An action setting forth a claim of undue influence is among the most common methods of contesting a will; however, an action for undue influence can also be effective in challenging lifetime gifts. As a general matter, undue influence is defined as mental, moral, or physical exertion which has destroyed the free agency of a party by preventing that party from following the dictates of his own mind and will and accepting instead the domination and influence of another. A plaintiff claiming undue influence has the burden of demonstrating a confidential relationship between the donor and the donee.
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The Duty to Account of a Power of Attorney
While most people who are appointed Powers of Attorney understand their general duty to act only within the best interests of the person for whom they are serving as a Power of Attorney, and to not undertake transactions which solely benefit themselves, most of them do not understand their duty to account which is required by statute. It is important that a Power of Attorney carefully account when utilizing a Power of Attorney to undertake financial transactions, as this issue could come back to bite them if they do not properly account.
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Estate vs. Non-Estate Assets
In the process of probating and administering a Last Will and Testament of a Decedent, questions may arise whether assets owned by the Decedent are considered Estate assets or non-estate assets. This is called the distinction between probate and non-probate assets. It is important for determining Estate taxes to make this distinction.
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Valid Execution of a Will
The general conception by most people is that a Last Will and Testament must be signed by the Decedent in the presence of two witnesses. While this is undoubtedly the preferred method for a Last Will and Testament to be executed, it is not the only way that a Will may be deemed validly executed by a Decedent.
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What is a Holographic Will?
When a loved one passes, questions may arise as to who possesses the Decedent’s Last Will and Testament. …
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Breach of Fiduciary Duty Not Dischargeable in Bankruptcy
If a party brings an action alleging a breach of fiduciary duty by a person holding a Power of Attorney, or by an Executor of the Estate, this party should be aware that this judgment may have a lasting impact should it be obtained.
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Interested Parties in Probate Litigation
During a Will contest, a question may rise as to who is an interested party with regard to an estate. This question is not quite as simple as it may appear at first sight. In fact, the interested parties may be substantially greater than the party initiating the Will contest might have anticipated. As discussed below, interested parties are not merely those who are listed under the Last Will and Testament.
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Claims of an Executor Contrary to Interest of the Estate
Once an individual is appointed as the Executor of the Estate, the Executor may utilize Estate funds in order to undertake actions which are in the best interests of the Estate. Such actions may include defending against claims brought against the Estate by beneficiaries, potential beneficiaries, or third parties.
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