Do You Need a New Jersey Elder Care Attorney to Represent You in a Probate Case Involving a Trust or Will Contest?
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Elder Care Attorney
The Attorneys at Hanlon Niemann are Experienced Elder Care Lawyers Who Know the Laws and the Courts of New Jersey. Contact Us Today.
Estate and probate litigation including a will contest can be brutal, emotionally and financially. Perhaps your family is fighting over a will or trust. You may be embarrassed but the truth is, you’re not in the minority.
Perhaps you are a beneficiary who is getting the “silent treatment” from an executor, trustee or personal representative. They are avoiding you and not answering your calls, your letters, or haven’t sent you the money you were promised.
The final administration of a NJ estate involves many things. Sometimes there are delays in this process, caused by various questionable circumstances. An experienced estate and probate attorney can facilitate the process, even if questionable circumstances arise, in a timely and effective manner.
Why a NJ Elder Care Attorney Can Benefit
You in the Probate of Your Estate or Trust
NJ Elder Care Litigation Often Involves Conflicts Related to Estates, Wills and Trusts
Family members and heirs frequently object to even the best written wills, trusts and estate plans. Then there are conflicts that arise during the administration of an estate or a trust. There are many types of disputes. Here are a few examples:
Challenging the Validity of the Will or Trust in New Jersey
A well written last Will and Trust is supposed to allow a person to give away their property based purely on their own free choice. However, sometimes this is not the case. If you believe a person did not freely consent to their will or trust, you are entitled to contest it. A person contesting the will or trust must prove that the person who created it lacked mental capacity when the document was signed, or in the alternative that the creator signed the document as a result of undue influence, fraud, or duress. Other reasons for invalidating a will include when it is not properly signed, when there were no witnesses and/or the will was signed after the fact. If a will or trust is invalidated, the estate of the decedent will be distributed in accordance with whatever prior will or trust was written. If there is no prior will or trust, it will be distributed via New Jersey law, known as the law of intestate succession.
Some wills and trusts have “no contest” clauses designed to discourage contests. This means that if you are an heir and you contest the validity of a will and you lose, then you may be disinherited by operation of the no-contest clause.
Breach of Fiduciary Duty by an Executor, Power of Attorney, Trustee, Caregiver or Person in a Position of Trust in New Jersey
Executors and trustees also owe a fiduciary duty to the heirs and beneficiaries of an estate. A fiduciary duty consists of a duty of good faith and fair dealing and diligent effort. A fiduciary must always consider the best interests of the trust or estate before his or her interests. When an executor, power of attorney or trustee profits from his or her position, other than earning agreed-upon compensation, they may have breached their fiduciary duty. A failure to safeguard trust or estate assets that causes a loss to the heirs and beneficiaries may also be a breach of fiduciary duty. The heirs and beneficiaries damaged as a result can file a lawsuit against the executor or trustee. Under some circumstances, the executor, trustee and power of attorney can be held personally liable for the loss. When this happens, you need a seasoned NJ Elder Care attorney.
Failure to Account by Executor, Trustee, Power of Attorney and Guardian
Persons in a fiduciary position have a duty to preserve and protect estate assets, and to account to the beneficiaries for all monies coming in and going out. A NJ court will not allow probate to end until a satisfactory accounting is complete. Without a proper accounting, beneficiaries are entitled to file a petition seeking a court order compelling an accounting. Fiduciaries who fail to properly account for their actions may be removed by the court.
The court will order fiduciaries to prepare an accounting unless all of the beneficiaries agree to waive such an accounting. If the executor or trustee has failed to keep estate property separate from their own, a breach of their fiduciary duty is presumed and a court will compel an accounting by them.
A Verbal Promise to Make a Will for the Benefit of Another
People often make promises they don’t keep. Some promises relate to wills and trusts. For example, a parent verbally promises their child to leave them their house upon their death because of sacrifices made in caring for them. When a promise isn’t fulfilled, sometimes it is possible to enforce what the courts call a “Contract to Make a Will.”
As a general rule, agreements to leave property after death must be in writing. If they are not in writing, such agreements are unenforceable. There is, however, one exception to this rule where the person to whom the promise was made changed his or her position in reliance of the promise and suffered a detriment as a result when the promise was not fulfilled.
Here is an example to illustrate when this would apply:
I was in a panic. My fiancee passed away and I was named as a beneficiary of a valuable piece of real estate in Hudson County, New Jersey under his Will. Adding to my grief was the decision of the Executor to ignore the language of his Will and then he refused to convey ownership of the real estate to me.
What were my rights? What could I do? I called various people for a referral to an attorney experienced in probate litigation. Mr. Niemann was recommended to me and immediately he took charge. He filed a lawsuit against the Executor and aggressively fought for me throughout the legal process. He would not compromise or settle for less than I deserved under the Will. A trial took place and Mr. Niemann tried the case for me to the end. He was prepared and his office and associates offered tremendous assistance to me and Mr. Niemann in getting the case ready for trial.
Today, I am the owner of the property my fiancee intended for me to have. I cannot say enough good things about my experience with Mr. Niemann and his very capable office.
-Noreika Sanderson – Weehauken, NJ and New York City, NY
Will Contests and Disputes
A will does not always guarantee that property will be distributed according to the expressed terms in the will. A court generally will allow for an opportunity to object to the will, and a challenge may be brought by anyone who feels the will is inaccurate or invalid in some way. These types of cases are often difficult and emotionally charged, so it is important to find an attorney with whom you feel comfortable and who is knowledgeable about such proceedings.
Express directives in a will or trust are not a guarantee that a person’s property will be distributed according to its terms. Courts generally allow parties an opportunity to voice their objections to a will so long as they can state a legitimate argument as to why it is invalid or inaccurate. Parties involved in these types of disputes are often emotionally involved and face difficult circumstances. It is important that you find an attorney that you trust and has experience handling such cases.
At Hanlon Niemann, we have handled Elder Care Law and issues for over 30 years. We have extensive experience in wills, trusts, and other estate administration litigation. We have knowledgeable attorneys with significant background in probate law and trial litigation. It is our policy to first attempt to mediate any disputes in a practical, responsible manner. We always prefer mediation and negotiation that is consistent with our client’s desired outcome. However, if we are faced with a confrontational adversary, we will not hesitate to go to trial to help you get what you deserve.
ARE YOU FACED WITH AN EMOTIONAL FAMILY DISPUTE INVOLVING A LAST WILL OR TRUST? BELIEVE SOMETHING JUST ISN’T RIGHT IN THE ADMINISTRATION OF THE ESTATE OR THAT AS A BENEFICIARY YOU ARE GETTING CUT OUT OR RECEIVING LESS THAN YOU SHOULD. I HAVE WRITTEN EXTENSIVELY ABOUT WILL CONTESTS, PROBATE DISPUTES, UNDUE INFLUENCES AND ESTATE LITIGATION IN www.willcontestandprobatelitigationattorney.com (CLICK HERE). YOU’LL BE GLAD YOU DID.
LOOKING FOR AN EXPERIENCED NJ ELDER CARE ATTORNEY?
Please call Fredrick P. Niemann today,
toll free at (855) 376-5291.
He can also be emailed firstname.lastname@example.org.
He welcomes all of your questions and strives to be an easy going, understanding attorney.