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Wills · Living Trusts · Probate Law ·
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When You Need a Lawyer
Most probate cases are uneventful.
Except for the annoyance of identifying certain assets, completing tedious
paperwork, or deciphering an arcane tax regulation and the like, most probate
matters roll along until completed. Occasionally, however (and this is where
probate has been tagged with its often undeserved evil reputation), you may
encounter difficulties--and sometimes nightmares. If any difficulties develop,
you are really advised to hire an estate attorney. Again, that does not mean
huge fees and total involvement of the attorney. It means meeting with the
attorney, fully apprising him or her of the issues and considering his or her
advice as to what aspects of the probate matters the attorney should handle.
Dying intestate
If the decedent died without a will
(intestate), state law provides rules to determine who the executor or
administrator is and to whom and how (outright, in custodial accounts for
minors, or to a guardian if the beneficiary is incapacitated) the decedent's
assets will be distributed. The typical distribution scheme is to provide for a
fixed dollar amount, and a significant percentage of the remaining assets to the
surviving spouse, with the remainder to be shared between the children. If there
is no spouse or children, the assets will be distributed to more distant
relatives in order of the nearness of the family relationship (consanguinity).
Although the rules differ from state to state, grandchildren, then parents, then
siblings, then nieces and nephews may take in that order.
Will
challenges
The large transfers of wealth that are now occurring are
generating more will challenges in part because of increasingly complex family
structures. Blended families, nontraditional families, second, third and later
marriages, are becoming more common than the Leave It to Beaver families many
politicians would have you believe are the norm. These demographic changes are
compounded by the litigious nature of many baby boomers who are the
beneficiaries of these wealth transfers. If you are serving as an executor, you
should become familiar with basic will challenges and some of the steps you can
take to address such a problem if it arises.
A will challenge can be
triggered by hurt feelings: "Why didn't Mom give me as much as my sister?" When
a beneficiary receives less than expected, a will challenge may result. If a
parent disinherits a child, that child might seek to challenge the will. Whether
the challenge is primarily to assuage the hurt of a will clause confirming a
parent's lack of love ("For reasons best known to me I leave nothing to my son
John"), or for the money, a challenge is nevertheless likely.
In many
instances, a will challenge is undertaken because of problems that occurred with
the will itself. The will may not have been signed with the proper formality
required by state law. It may have lacked the requisite language in the
document, not had the proper number of witnesses, or the witnesses may have been
disqualified (e.g., the witnesses may have all been beneficiaries). In some
instances, fraud or duress may have occurred in the signing of the will. Fraud
could have occurred if the will signed was not the one the decedent intended (a
switch was intentionally made). Duress could occur if the decedent was
intimidated into signing a will that he or she did not really want to sign. If
the decedent did not have sufficient understanding of what he or she was doing
to sign the will, a challenge may result.
Why challenge a
will?
If someone succeeds in challenging the will they may be able to
convince the court to write their name in the will where it was arguably
forgotten. For example, your three siblings were listed as sharing equally in a
$100,000 distribution. Your name was not listed. Perhaps it was a matter of the
testator's merely forgetting your name. Perhaps your estranged siblings
conspired in influencing the testator to leave your name out of the will so that
their shares would be larger. Perhaps your wife, the testatrix, left you out of
her will in favor of her new boyfriend. You may want to challenge the will to
assure an inheritance (although the exercise of a spousal right of election
might be preferable).
What happens when someone challenges the will
and succeeds?
In most situations, you as executor in consultation with
the estate attorney will probably negotiate a settlement with the person, obtain
a release and consent to the will being admitted, in order that you may proceed
to complete the probate of the estate. Settling may also be advantageous for you
as executor if the settlement is less costly than the estate attorney's
estimates of the likely costs of fighting the lawsuit. Be certain to discuss
with the estate attorney whether you should obtain the approval of any
beneficiaries or other people affected by the outcome of the suit and
settlement. You do not want to later be sued by the very beneficiaries you
thought you were protecting with the settlement.
In other cases if the
will challenge is successful, the entire will may be thrown out. If this
happens, you may no longer be able to serve as executor. In some cases, it may
be possible to have the court issue preliminary letters authorizing you to take
limited actions pending resolution of the will challenge. If the will is
disregarded, if the decedent had signed a will prior to the will just
challenged, the next most recently signed prior will may be reinstated. If there
was no prior will, then it will be as if the decedent died intestate. Then state
law will determine who receives how much of the estate. If a person would
inherit under the state law intestacy statute, but the will gave him or her
nothing, then a successful will challenge could provide a windfall.
On what basis can someone challenge a will?
Among the most
common justifications for a will challenge is the mental incompetency of the
testator. If the person signing the will did not have a sufficient frame of mind
to understand and knowledgeably sign the will, it cannot be valid. The second
typical basis for challenging a will is the existence of undue influence. This
is when someone coerces or even forces the testator to sign a will. These two
reasons are often, but not always, used together when a potential heir attacks a
will. Although the decedent could have been incompetent but not subject to undue
influence, usually the decedent's mental incapacity makes him or her more likely
to fall prey to undue influence.
How do you defend the estate and the
will against a challenge?
First, do not try without competent legal
assistance. A probate attorney or estate planner may not have the expertise. You
want an attorney who specializes in probate and estate litigation and has
considerable experience. Often, this will be a specialist other than the
specific attorney who has assisted you with planning and probate matters.
This does not mean that the decedent had to name family members as
beneficiaries, but she must have understood who her family members were and that
they were not being named. The decedent must have understood the purpose of her
executing the will. She must have understood If the will challenge is based on
the decedent not having sufficient mental capacity, to protect the integrity of
the will you will have to prove that the decedent had sufficient capacity.
Competency means that the decedent understood the nature and extent of her
assets. Did she know what she owned? Did the decedent understand the natural
objects of her bounty? This usually includes family members. that by executing
the will she was directing where her assets were to be distributed on her death.
Competence of the decedent is usually done through witness testimony.
What did the lawyer who supervised the will ask the decedent at the will
signing? What did the decedent answer? What was the recollection of the
witnesses to the will? Did the lawyer prepare a memorandum to the file or other
notes demonstrating the decedent's condition? You could next find out about the
decedent's typical practices and activities. Ask the people that had regular
daily or weekly contact with the decedent for their thoughts, observations and
opinions about the decedent at or about the time period when the will was
signed. Try to develop a description and picture about the decedent and her
life. Who were the important people in the testator's life? What motivated the
decedent to favor one beneficiary over another? You also want to find out about
the problems the decedent had with the persons who were left out of the will or
not favored in the will.
The court proceeding to determine
incompetency
This type of action is generally instituted by a spouse or
next of kin. The venue for an action for the appointment of a guardian is the
county where the incompetent was domiciled at the commencement of the action.
This may not be the same county or even the same state in which the executor
commenced the probate proceeding.
Copyright © 2000-2002 American Estate Planning Attorney Directory. All
rights reserved.
AEPAD is the American Estate Planning Attorney
Directory. While the information on this site deals with legal issues,
it does not constitute legal advice. If you have specific questions related
to information available on this site, you are strongly encouraged to consult
an attorney who can investigate the circumstances of your situation and the
particulars in your state.
