Providing for Incapacity
If you become incapacitated, you may not be able to manage your own financial affairs. Many are under the mistaken belief that one’s spouse or adult children can automatically take over for them if they become incapacitated. The truth is that in order for others to be able to manage your finances, they must petition a court to declare you legally incompetent. This process can be lengthy, costly, and stressful. Even if the court appoints the person you would have chosen, the individual may have to come back to the court every year and show how he or she is spending and investing each and every penny.
If you want your family to be able to immediately take over for you, it’s essential that you work with an attorney to create the proper legal documents to designate a person, or persons, that you trust so they will have the authority to withdraw money from your accounts, pay bills, take distributions from your IRAs, sell stocks, and refinance your home. Many people mistakenly believe that a simple will can effectively protect you in the event that you become incapacitated, but the truth is that a will does not take effect until you die.
In addition to planning for the financial aspect of your affairs during incapacity, it’s critical that you establish a plan for your medical care. The law allows you to appoint someone you trust – for example, a family member or close friend to make decisions on your behalf about medical treatment options if you lose the ability to decide for yourself. You can do this by using a durable power of attorney for health care where you designate the person to make such decisions on your behalf.
A properly drafted will should clearly identify all beneficiaries and leave no ambiguity surrounding the intentions of the deceased (referred to as the “testator”). Unfortunately, estate planning documents, including wills or trusts, do not always clearly reflect the intentions of the testator. Even if the language of the documents is clear, parties may have other reasons to initiate a lawsuit or object to a will.
When someone with standing objects to a will or a trust, the estate might have to be litigated. This is sometimes referred to as a “will contest.” These disputes can be complex and should be navigated by attorneys with expertise in such matters, including an intimate knowledge of probate court rules and procedures.
Typically, if a will is involved, a probate court will determine whether or not it is valid and should be executed. If the will is found to be valid, the court will oversee the allocation of assets and will ensure that the named executor carries out the wishes of the decedent in a lawful and timely manner. The court also oversees the distribution of assets if the testator, or deceased person, died intestate, without a valid will.
Who Can Contest a Will?
A protesting party may only contest a will if he or she falls within one of two categories. First, those mentioned in the will, known as the will’s beneficiaries, may formally challenge it. Alternatively, if the challenger stands to inherit according to laws of intestacy (such as a family member), but is not named in the will, or is expressly disinherited, he or she may seek to contest. If one is not named as a beneficiary in the will and is not a family member eligible for inheritance, known as a distributee, he or she may not pursue a formal challenge.
In order to successfully contest a will, the protesting party must prove that the will is invalid. There are several scenarios under which a will may not be admitted, including but not limited to:
- Undue influence – If the testator altered his or her will under the threat of force or other persuasion, it is said that he or she was under undue influence.
- Mental incapacity – Similarly, if the testator is shown to have been in an incapacitated or otherwise impaired mental state at the time the will was executed, it may be considered void.
- Will does not follow procedure – A will may be contested if it was signed in the absence of witnesses, was not signed by the testator, or is otherwise not executed according to the law.
- The will was revoked – If the will was revoked after it was signed, it will also be considered void. A subsequent will, marriage, or legal action may also revoke a will.
- Fraud – Lastly, the protesting party can contest if he or she has proof that the testator was deliberately misled by a third party.
When there is no Will
In instances where no valid will exists then intestacy laws which indicate what assets each family member is to receive go into effect. Typically, inheritance is granted to family members according to a specific order. Once the decedent’s debts have been paid from the estate, the remaining assets are distributed among the testator’s spouse, children, parents, siblings, grandparents, grandchildren, or great-grandchildren. Family members who are half-blood relatives are generally considered as if they were full-blood.
Without the guidance of an estate litigation attorney, the web of rules involved in the process can be overwhelming and lead to serious errors or even forfeiture of one’s rights. Whether you are an executor, trustee, beneficiary or someone improperly left out of a will, contact our experienced attorneys to discuss your options.
Elder Law and Guardianships
While the golden years are supposed to be filled with the joys of retirement, grandchildren and travel, they are seldomly enjoyed without various other complexities that individuals encounter as they age including deteriorating health, financial concerns and family disputes. To meet these challenges, a unique area of law – elder law has taken on greater value to millions of aging Americans and their caregivers. This area encompasses many different legal disciplines, including estate planning, business succession planning, asset protection, Medicaid planning and veterans benefits.
Our attorneys are knowledgeable on the wide array of issues that impact the elderly and can assist you or your loved ones with the following matters:
- Healthcare planning including powers of attorneys and healthcare proxies
Contact Our Experienced Elder Law Attorneys Today
While we communicate with caregivers, including spouses, children, doctors, social works and home aides, our central focus remains our elderly clients. We work diligently to make sure the seniors we represent are protected and continue to enjoy a high quality of life as they age. Contact our office today for a free consultation.
Kohan Law Group represents clients with their estate planning and elder law cases throughout Nassau County as well as in New York City, including Queens and Brooklyn, from their Manhasset office in North Hempstead.