Probate Litigation, Probate Administration And Will Contests
The causes of will contests and probate litigation generally fit into the following categories:
- The leading source of probate litigation is questionable 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 may not be aware that upon the death of the principal, the law can require an accounting 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.
- Joint POD and TOD accounts — These are another frequent source of litigation due to the following scenario. The elder appoints someone to handle his or her banking and financial affairs for convenience purposes only. The financial institution recommends that agent be added to the account, as a joint owner or upon death, by operation of law, the joint, POD or TOD holder becomes the sole owner of the remaining funds on deposit. Often, the agent then decides that the elder intended to gift him or her the funds upon death, ignoring that the arrangement was for convenience purposes, without any donative intent by the elder. This results from the misguided advice given by the 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 certified elder law attorney (CELA) drafts a power of attorney document stating that the agent may be added to the account for convenience purposes only and without intent to gift, thus avoiding expensive probate litigation.
- Exercise of undue influence over the person creating the will, especially by caregivers or those with confidential relationships, including, unfortunately, the person’s own children.
- 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 and even if the caregiver is family.
- Improvident gifting — This is the scenario where substantial predeath “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 it 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 our East Hanover law firm at 973-577-6010 or click here to contact us online.