Probate Litigation, Probate Administration and Will Contests

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The causes of will contests and probate litigation generally fit into the following categories:

  1. The leading source of probate litigation is pre-death expenditures by powers of attorney/agents appointed by the decedent. While the law requires a power of attorney to serve in a fiduciary capacity for the sole benefit of the principal, some agents use their authority as a license to steal. The power of attorney then learns that upon the death of the principal, the law can require an Accounting by them of how the funds were spent during the principal's lifetime which will be scrutinized by the Probate Court, Surrogate and/or the will beneficiaries.
  2. Joint Accounts - These are another frequent source of litigation due to the following scenario. The elder appoints someone to handle their banking and financial affairs for convenience purposes only. The financial institution recommends that agent be added to the account, as a joint owner. When the elder dies, by operation of law, the joint holder becomes the sole owner of the remaining funds on deposit. Often, they then decide that the elder "intended" to gift them the funds upon their death, ignoring it was for convenience purposes, without any donative intent by the elder. This results from the incorrect "legal" advice given by some financial institution to add that party's name to the account. For legal advice, see a lawyer, not a banker or broker.

    To avoid this complication, an experienced CELA drafts a Power of Attorney document to state they may be added to the account for convenience purposes only and without intent to gift, thus avoiding expensive probate litigation.

  3. Exercise of undue influence over the person doing the will, especially by caregivers or those with confidential relationships, including, unfortunately, their own children.
  4. The "I took care of them so I'm entitled" syndrome. Funds may have been taken during the decedent's lifetime or by a change in a prior testamentary plan, like a "new" will. To avoid this syndrome, draft a written caregiver agreement for services before they are rendered.
  5. Improvident Gifting - This is the scenario where substantial pre-death "gifts" are given with the usual excuse being "mom or dad wanted me to have it." That answer will not pass judicial muster.

The best advice regarding will contest and probate litigation is to avoid them by addressing these causes while you're still here!

For a free initial consultation regarding Probate Litigation, Probate Administration and Will Contests in New Jersey, call us at 973-887-4254 or click here to contact us online.