Wills, Trusts, Medicaid & Everything In Between

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Apprehension is often the driving force behind turning to what is known as a ‘no contest’ clause. Many have a legitimate fear of having the validity of their will or trust challenged in court, unease because of the possible bickering or even potential fallout amongst beneficiaries.

What is a ‘no contest’ clause?

Also known as ‘In Terrorem’, a ‘no contest’ clause is designed to discourage resentful and dissatisfied beneficiaries from contesting your will. Such clauses are permitted under New York law under the Estates, Powers and Trusts Law Section 3-3.5, entitled “Conditions qualifying dispositions; conditions against contest; limitations thereon.” A New York will with a ‘no contest’ clause affirms that the unsuccessful challenge of the validity of the will by a beneficiary will result in the inheritance being withdrawn.  Basically, it’s a tool to discourage beneficiaries from objecting to the validity of the last will and testament for fear of losing their inheritance.

Exceptions to the Rule:

A ‘no contest’ clause, however, cannot interfere with legal proceedings.  In accordance to the Surrogate’s Court Procedure Act Section 1404, an interested party is allowed to engage in discovery to obtain specific documentation and pre-trial testimony from the lawyer who drafted the will.  Furthermore, the nominated executor, the Will proponent, as well as any pre-objection discovery from the substantiated witnesses can be obtained by a respondent under SCPA 1404. As a result, engaging in discovery under SCPA 1404 is not a violation and for that reason, inheritance is not denied.  In addition, under Section 3-3.5 the challenger is permitted the inheritance if the following conditions are met:

  • The Will is being contested simply because it is being offered in the wrong jurisdiction.
  • Based on probable cause, an argument can be made that the will was revoked by a later will or that the will is a forgery
  • The challenger is incompetent or an infant.

Section 3-3.5 also prohibits disinheritance in circumstances that lead to a form of coercion if disinherited, for instance, if a will instructs that the beneficiary is disinherited for declining to join a petition for the probate of a document as a last will or for volunteering evidence and documentation pertinent to the probate proceeding.

Estate planning offers a multitude of considerations for the various provisions that can be lumped into a Last Will.  Naturally, a Will contains the terms pertaining to the distribution of bequests and assets to the listed recipients. The  ‘no contest’ clause is included in a will in order to dissuade disgruntled beneficiaries from pursuing any action against the estate – the thought being that nobody would risk losing their inheritance on the possibility of a failed challenge.

Contesting a will is a not only a complicated legal procedure, but it is also mentally and emotionally draining for the persons involved. The majority of people have no need to worry about having their Will or trust challenged in court. If, however, you have a substantial reason to believe that your Will might be challenged, your best option is to seek out an experienced estate planning attorney.  A good lawyer will suggest tactics to handle any potential problems or worries (i.e., who and why you think your Will might be challenged by) and be well informed with how the courts treat ‘no contest’ clauses. If you’re involved in a Will contest, experienced representation is critical in order to ensure an optimal outcome.

New York Inheritance-Death Tax Rate Laws:

People do not live forever, and when they eventually pass away their assets will be subject to tax. Everyone would like to receive the most out of their inheritance and the last thing they want to do is give too much away to Uncle Sam. When planning an estate it’s absolutely imperative to understand all the tax laws, the amount of tax you will need to pay and to know if you have any legal wiggle room to increase the sum of your inheritance.

Medicaid Eligibility in NY: Do I Qualify?

It Seems like the million dollar question in New York City these days is “Do I meet the qualifications to receive Medicaid?”. Financial times are tough and everyone wants free or subsidized health insurance. There is officially a new trend to try to attain government subsidized insurance. Many people think that if they make their children living trusts for their assets and property they will automatically be eligible for medicaid. This may or may not be true and is contingent on many different aspects of the law and the estate. We invite you to join the tens of thousands of people who have chosen to learn about medicaid eligibility from our publications. Don’t forget that you can reach out to Roman now and schedule your very own sit-down medicaid planning consultation at our Queens or Manhattan office.

How To Contest A Will in NYC?

As crazy is it sounds there are situations in which someone is not included in a will and wants to fight it. Reasons may include fraud, the mental capacity of the one who passed away and many more. Obviously, in order to fight or contest a will in NYC the person must have a legal status of a disinherited child, spouse or sibling. it would not be realistic if anyone could contest anyone’s will. If you or anyone else you know has an issue with a will the best thing to do is run to the phone and call a local estate attorney right away, and get a firm understanding of the probate process

Preliminary Letters Testamentary For A Slow Probate Process:

Getting dragged into a slow-moving probate process is quite common in the New York court systems. The problem is that after someone passes away there is a lot of bureaucratic work that needs to be done regarding the estate in question. Who will be responsible for the taxes, maintenance and other general issues that may arise? Preliminary Letters Testamentary used by attorneys can fix the many headaches that may arise for a family undergoing a lengthy probate process. This legal process involves a lot of intricacies and must be implemented and monitored by a really professional and experienced attorney who knows what they are doing.

Estate Accounting: The Road To Asset Distribution in NYC:

Losing a loved one is a very sad moment but after it all sinks in it becomes time to distribute the assets to the rightful beneficiaries. This process as many important steps to it but perhaps the most vital of them all is estate accounting. This accounting is actually the very final step before the funds are released to the executor or administrator. If the accounting is done properly it releases the fiduciary from liability and the distribution will go smooth. To ensure this, a top-quality attorney should be hired. Estate accounting in New York state or city has very often resulted in complicated affairs due to a lack of communication and understanding between the attorney and the beneficiaries. The key to avoiding this is to plan your estate with a really qualified legal adviser from the get-go.

Planning An Estate For Children in NYC:

Nothing is more gratifying than watching your children grow. The first years of their lives are the most adorable. Throughout this joyful period, one should start thinking about being a responsible parent & planning an estate. The future of your assets and their distribution depends very much on how good of an estate or probate lawyer you hire. When you find the right legal professional you will need to discuss topics like beneficiary designations, guardian appointments & life insurance. Thankfully, in our area of Queens & NYC there are many great elder law attorneys to choose from.

Questions To Ask Your Potential Probate Lawyer                         

The name of the game is “due diligence”. If your potential future lawyer can answer all your difficult questions then he may be ready for hire. How do you know which questions to ask? Well, that’s what we’re here for. Here are the most critical probate questions to ask your lawyer before hiring them. Have you had any similar cases to mine (explain your case first) and what were the outcomes? Do you have any experience working with people at the surrogate court which I was assigned to? How long will the process take? Realize, that probate cases can be tedious and lengthy so try to get an honest answer on this last one. Finally, find out the costs and try to sniff around to see if the attorney has a team that will be able to provide you good customer service. After running this test, you’ll be on your way to hiring the perfect probate attorney for you.

How Estate & Probate Became A Way Of Life

Living and breathing estate law is the epitome of my life. It all started when I was a kid growing up in Queens, NY next to the Surrogate court. That is when my fascination with estate & probate law began. It made me realize that this legal field is one of the most important ones in existence. Unlike other legal fields, this one deals with more than just money, it deals with spirituality. That is because people’s religious and idealistic beliefs will play a big roll in how they plan for their future.

For example, in Judaism and Islam, men play a more dominant role in inheritance. This means that by default the assets go to the men and on the woman. Although in many Jewish homes it is decided beforehand by the parents that the boys will inherit and then pass the girls half by means of a “present” this way they can fulfill the tradition to inherit the boys. In Islam, the men dominate the inheritance fields and it does not seem like there is a “de-facto” roundabout maneuver to get the money to the girls (like in Judaism). Moreover, in religious households where there is no will or instruction on what to do, they will be required to go to a local religious authority to decide how to divide the assets. This means that internally the local probate laws will not make a difference to a family where everyone holds strong religious beliefs.
Again, whether religious or not, this all leads to the bottom-line understanding of how important it is to plan your estate and avoid probate (whether religious or not). Time and time again I saw families where no will was left trying to understand estate & probate law at the Queens Surrogate court. They looked like their lives were in shambles and it’s all because their family did not take time to speak to an estate, elder or probate attorney when they were still alive.

Good news folks, our top rated legal services are available at various locations throughout the five boroughs of New York City. That means you are only a short ride away from our “AVVO Superb Rated” estate law team. Get directions and information below.

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