Category Archives: Uncategorized

Why Would a Person Challenge a Will?

Standing to Challenge a Will
A person has “standing” to challenge a will if the person is named as a beneficiary in the Will or, although not named as a beneficiary, would inherit if the Will was held to be invalid. In other words, to have standing, you must be able to demonstrate that you were named as a beneficiary in the Will (or a prior Will) or that you would have inherited property if the decedent died without a Will. Other reasons exist for standing, which an estate attorney can explain.

A person may get a copy of a Will, which is a public document, in the Surrogate’s office in the county where the decedent permanently resided at the time of death.

Procedure to Challenge a Will
A person seeking to challenge a Will in New Jersey must act timely in one of two ways. Either way will require the assistance of an experienced estate attorney. First, the challenger may file a protest (called a caveat) against the Will at any time before the Will is offered for probate. The caveat is filed with the surrogate in the county where the decedent resided. Under New Jersey law, the executor may not offer the Will for probate until the 11th day after the death of the testator (the deceased person whose Will is offered for probate). This gives the challenger at least 10 days to file the protest before the executor may offer the Will for probate. A hearing will then be held to determine the validity of the Will. If the challenger is unable to file the caveat before the Will is probated, the second option gives the challenger four months from the date the Will was admitted to probate to file a complaint in court challenging the Will. If the challenger resides outside New Jersey, the challenger will have six months to file the complaint. If the challenger suspects that fraud was involved in probating the Will, the challenger may file the complaint no later than 30 days beyond the prescribed four and six month time limits.

Grounds for Challenging a Will
There are several grounds that may be available for challenging a Will, which include, but are not limited to, failure to comply with the statutory formalities for executing a Will, lack of testamentary capacity, and undue influence.

1. Failure to Comply with Statutory Formalities for Executing a Will

a. Statutory Formalities For Executing a Will.

To be a valid Will and admissible to probate, the Will must be:
(1) in writing;
(2) signed by the testator or in the testator’s name by some other person in his conscious presence and at his direction; and
(3) signed by at least two persons, each of whom signed within a reasonable time after each witnessed either the signing of the Will, or the testator’s acknowledgment of his or her signature or acknowledgement of the Will.

In addition to satisfying the above formalities, the Will must have testamentary intent, that is, the document must indicate that it is the testator’s last will and testament. A Will that complies with the formalities above is presumed to have testamentary intent even if the document does not expressly say so.

b. Writing Intended as a Will

New Jersey law provides that a Will that does not comply with the above statutory formalities may still be valid as a writing intended as a Will if the testator’s signature and material portions of the Will are in the testator’s own handwriting. The person offering the writing intended as a Will must prove testamentary intent by clear and convincing evidence if the writing is challenged.

2. Lack of Testamentary Capacity
Assuming the formalities discussed above are satisfied, a Will is valid in New Jersey if the testator, at the time of signing the Will, is at least 18 years of age and of sound mind. The presumption is that the testator had testamentary capacity at the time the testator signed the Will. The person challenging the Will for lack of testamentary capacity has the burden of proving by clear and convincing evidence that the testator lacked testamentary capacity when the testator signed the Will. The test of testamentary capacity is whether the testator knows the extent of the property being disposed of, the persons who are inheriting the property, the nature of what he or she is doing, the relationship of these factors to each other, and whether the testator understands that the Will is the device used for distributing the property. Testamentary capacity or the lack thereof may be demonstrated by the testimony or opinions of lay and expert witnesses.

3. Undue Influence
If anyone exerted undue influence over the mind or free will of the testator at the time of the execution of the Will, the Will is void. In such a case, the Will was not the product of the exercise of the testator’s own free will but was instead the result of someone forcing the testator, whether by psychological, physical or by some subtle means of coercion or manipulation, to do something that the testator would not have otherwise done regarding the distribution of the testator’s assets under the Will. Courts will examine a number of factors to determine the presence of undue influence including but not limited to the age and mental and physical condition of the testator, and the relationship of the testator to the person exercising the undue influence. A presumption of undue influence arises if the person challenging the Will demonstrates that there was a “confidential relationship” between the testator and the proponent of the contested Will and there were “suspicious circumstances” surrounding the testator’s execution of the contested Will. The burden of proof then shifts to the proponent of the contested Will who must then disprove that the Will was the result of undue influence.

Please call (973-744-0073) or email (dhaase@dmhaaselaw.com) for an appointment with Dennis M. Haase, Esq. to handle your estate litigation, estate planning, estate administration, or other tax planning and tax litigation matters.

 
 

Probate and Estate Administration in New Jersey

The probate process in New Jersey is relatively easy, inexpensive, and streamlined compared with other states such as New York or California. Under New Jersey law, probate requires that the named executor bring a death certificate and the original Last Will and Testament of the decedent to the surrogate’s office in the county where the decedent was domiciled (where the decedent resided) at the time of death. However, by statute the executor must wait 10 days after the date of death before visiting the surrogate’s office to file for probate.

In most counties the surrogate will assist the executor in completing the necessary paperwork for the executor to receive “Letters Testamentary,” which is the official court record appointing the executor to administer the estate of the decedent. Letters Testamentary will usually be issued to the executor during the executor’s initial meeting with the surrogate. During that meeting the executor must be prepared to give the names, addresses, and relationship to the decedent, of the beneficiaries named in the Will. It may be prudent for the executor to retain an attorney before scheduling a visit with the surrogate’s office to make sure the visit and the necessary paperwork are handled smoothly. It is often unnecessary for the attorney to accompany the executor to the surrogate’s office.

Within 60 days after receiving the Letters Testamentary, the executor must send a Notice of Probate, which is a letter prepared by the executor or the estate’s attorney (sent by certified mail), informing the beneficiaries that the Will of the decedent has been probated, providing the name and address of the executor, the date and place of probate, and stating that a copy of the Will is available upon request. The executor must send proof of the mailing of the Notice of Probate to the surrogate’s office.

During the 60-day period after receiving the Letters Testamentary, the executor should begin the process of estate administration, which will include, but not be limited to, locating, gathering, and safeguarding the assets of the decedent, taking an inventory and having the assets appraised, determining the nature and extent of the decedent’s debts, applying to the Internal Revenue Service for a tax identification number for the estate, and setting up an estate checking account.

If the executor has retained an attorney to assist with estate administration, the attorney should notify the executor in writing of: the executor’s duties owed to the estate, to the beneficiaries, and to the court; upcoming deadlines regarding income, estate and inheritance tax return filings and claims against the estate; time sensitive elections available to the surviving spouse, if any, (e.g. spousal elective share), and to beneficiaries for disclaimers; tax elections available to the executor that can have a significant impact on the estate and beneficiaries’ tax liabilities; and other estate issues that must be addressed in a timely manner by the executor. The attorney can provide a checklist of the executor’s duties and a timeframe for adhering to them.

The executor must always be mindful that he or she is under a duty to settle and distribute the estate in accordance with the terms of the probated Will and applicable law as expeditiously and efficiently as possible consistent with the best interests of the estate. N.J.S.A. 3B:10-23. The executor, however, should always postpone any distributions to beneficiaries until at least nine months have passed since Letters Testamentary were issued to the executor to allow for creditors to present claims against the estate. N.J.S.A. 3B:22-4. Otherwise, the executor could be held liable for creditors’ claims if the executor distributed estate assets before the end of the nine month period.

When making distributions of the estate assets to beneficiaries under the Will, the executor should always have each beneficiary sign a Refunding Bond and Release and return it to the executor before making the distribution to that beneficiary. The Refunding Bond serves a two-fold purpose. First, by signing the Refunding Bond the beneficiary is agreeing to refund to the executor the beneficiary’s proportionate share of any debt that may arise in the future if there are no estate assets to pay the debt. Second, the Refunding Bond releases the executor from any liability with regard to the distribution to the beneficiary.

Finally, the attorney will help determine whether the executor should file a formal or informal accounting of the transactions that occurred during the executor’s administration of the estate. In the majority of cases in New Jersey, the executor files an informal accounting because it is simpler and less costly than filing a formal accounting requiring judicial supervision and approval, and most estates are settled without dispute among the beneficiaries. Stated simply, an informal accounting sets forth the assets received by the executor and their date of death values, records the estate’s expenses of administration including payment of the decedent’s last illness, funeral expenses, any estate or inheritance taxes, distributions to beneficiaries and the executor’s commission, and indicates the remaining assets at their current values for final distribution to the beneficiaries.

If all the beneficiaries accept the informal accounting, they will sign waivers, after having the opportunity to review the informal accounting, and release the executor from any further liability. Before making final distributions, the executor will have the beneficiaries sign and return to the executor a Refunding Bond and Release for the final distribution. The executor will then file the signed Refunding Bonds and Releases with the surrogate. If any beneficiary refuses to sign the Refunding Bond, the executor may petition the court for full release as fiduciary of the estate. After making final distributions, closing the estate accounts, and filing final tax returns for the estate, paying any required taxes due on behalf of the estate, and, where appropriate, receiving estate tax closing letters, the estate may then be closed. The whole process can take anywhere from 12 or 18 months to several years depending on the size and complexity of the estate.

Please call (973-744-0073) or email (dhaase@dmhaaselaw.com) for an appointment with Dennis M. Haase, Esq. to handle your estate planning, estate administration, or other tax planning matters.