If you want to contest a family member’s Will it is important that you do everything right and within designated time frames. Probate Courts will not wait for you to learn what you need to do, nor will they make allowances if you miss deadlines. The battle over Sherman Hemsley’s Will is a good illustration of this.

About a month before he passed away, Hemsley wrote a Will and left everything to a woman he claimed was his “beloved partner.” A man named Richard Thornton came out of nowhere to challenge the Will and claim that he was Hemsley’ half-brother. However, people familiar with Hemsley did not know about a brother. Recently, DNA tests confirmed that Thornton is Hemsley’s brother, which would ordinarily make the Will contest case much better. However, Thornton missed the deadline to have the DNA results entered in evidence in the case and the Court will not consider them.

Make sure that you hire an experienced Probate attorney as soon as you think you might want to contest a Will. You do not want to miss any important Probate deadlines.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

Everyone knows that there are more important things in life than money. However, when we feel aggrieved, it’s often hard to remember that, especially after the death of a loved one. This sometimes leads to poorly thought out estate challenges after someone does not receive an expected inheritance.

There is no doubt that it hurts when you do not receive the inheritance you expected and think you deserve. Before deciding to challenge the estate, however, take a few moments to consider the consequences. Your relationship with the people who did receive the inheritance will never be the same. They will have to fight you over what they perceive as their rightful inheritances. In many, if not most cases, the relationship is damaged irreparably. Sometimes, other family members who do not have a stake in the outcome are forced to choose sides and your relationship with them could be damaged as well.

That’s not to say that you necessarily should not challenge an estate, if you did not receive the inheritance you hoped to receive. You just need to consider all of the consequences. By all means, you should get what you deserve, especially if there has been fraud involved in an estate plan, but do know what you are in for before you proceed.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

Sometimes, you might be expecting to receive an inheritance and you know what to do with it before it comes. However, if you receive an unexpected inheritance, you might not know what all of your options are and what to do with the inheritance. An estate planning attorney can assist you in making sure that you do everything you need to do with the inheritance.

In some cases, you might not want the inheritance. For example, if you have to pay taxes on inherited real estate, owning the property might not be a good option in some financial circumstances. In this case, you can disclaim the inheritance. However, you have a limited time to do so and you must make your disclaimer properly. An attorney can help you disclaim an inheritance properly.

In other cases, you might need to pay taxes on an inheritance. Experienced estate planning attorneys are used to explaining what taxes need to be paid and when. The attorney can make sure that you do not get in trouble with the taxing authorities.

An estate planning attorney can help you with an unexpected inheritance in other ways. In most cases, your conversation with the attorney will be relatively short. The important thing is to have the conversation and make sure that you do everything right.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

Many people share a common belief that probate should be avoided at all costs, so instead of hiring an attorney to come up with an estate plan they devise their own schemes. For example, most people know that if two people are on a real estate deed as joint tenants, when one person passes away the entire property automatically passes to the surviving joint tenant. As a result of this knowledge, some people will make the mistake of adding their children as joint tenants in their home.

Adding children to to your property as joint tenants might work out in some cases. However, what might happen if your children have debts they cannot pay? You might find yourself involved in costly litigation to keep your children’s creditors from making a claim against your home. This litigation could be a lot more time-consuming and costly than probate. If your children owe money to a government agency, it’s almost guaranteed to be more expensive than probate.

Experienced estate planning attorneys have many methods of ensuring that your property passes to the people you want it to. Sometimes, those methods will include probate as a necessity. However, an attorney can and will plan your estate and draft the appropriate documents in a way that makes the probate process as painless for your heirs as possible. Probate only needs to be scary if you don’t have an experienced estate attorney working for you.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

If you have been appointed as guardian over an adult relative, it is not enough in New York to only manage the your relative’s financial affairs. You have explicit duties and responsibilities under New York law that you must faithfully carry out. A New York probate attorney can explain your duties in detail and even help you with some of them. The basic responsibilities are described below.

The first thing that you need to do after being appointed as a guardian over an adult in New York is to attend a six-hour class. In this class all of your duties and responsibilities should be explained, so pay careful attention. After that, you need to compile an initial report for the court that explains the condition of the adult over whom you have guardianship and details his financial assets. This report must be filed with the court within 90 days after you are appointed a guardian. An attorney can help you compile the required information.

Throughout your time as appointed guardian, you have a continuing duty to file yearly accountings with the court by May 31st every year. These accountings need to include all funds that came into the person’s account during the previous year and how you disbursed any funds. Finally, you must physically visit the person over whom you have guardianship at least four times every year.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

If you want to be appointed as a guardian of an adult relative in New York City, it is important that you speak to an experienced New York probate attorney. In New York, a guardian does not automatically receive complete control over all of an incapacitated person’s life. The court can grant limited powers covering only those areas that the adult needs assistance with. An attorney can assist you in tailoring your request to the needs of your incapacitated relative.

Most guardianships are for financial reasons. When people get older, many no longer have the ability to pay their bills on time and handle other aspects of their finances, such as filing taxes. If the incapacitated person is capable of handling his own health care decisions, however, the court will normally not appoint the guardian the power to make medical decisions until it becomes necessary. In other situations, a court might only appoint a guardian to prevent abusive or dangerous situations, such as self-harm by the incapacitated adult or financial abuse by another, unscrupulous relative.

Whatever the reason for an adult guardianship, be sure to limit your initial request for guardianship to include only the  necessary powers. This will assist the court in knowing that you are an appropriate person to appoint as a guardian because you are only asking for authority to help your adult relative in those areas where help is actually needed.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

If you have an incapacitated adult relative who is unable to provide for his or her own needs, you might be able to have a court appoint you as a guardian in New York. This is often necessary if an elder relative does not have an effective General Durable Power of Attorney. You will need to go to court to be appointed as a guardian of an adult relative, so consider the services of a New York attorney to assist you.

The process of getting guardianship over an adult relative begins by filing a petition with the court requesting that a guardian be appointed. The court then appoints someone to be act as an evaluator. The evaluator investigates the situation to make an independent report to the court whether a guardianship is necessary and whether the person requesting guardianship is an appropriate person to have it.

When the evaluator has compiled his or her report, the court will hold a hearing. At the hearing, the person requesting guardianship must prove by clear and convincing evidence that the guardianship is necessary and that he is an appropriate guardian. The evaluator will present his or her report to the court and other interested parties will have a chance to testify. After hearing the evidence, the court will reach a final decision granting or denying the guardianship request.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

In most situations, you can disinherit your heirs by simply leaving them out of your will. However, you generally cannot disinherit your spouse by will. According to most state’s probate laws, although you can disinherit any of your other relatives by written will, you cannot disinherit your spouse. Absent a valid prenuptial agreement created before you and your spouse married, you cannot use your will to disinherit your spouse.

Known as elective or forced shares statutes, surviving spouses have legal rights to minimum bequests. For example, your state most likely has a probate law allowing your surviving spouse to “elect” a minimum statutory share of her deceased spouse’s estate, instead of taking her testamentary bequest. This means that if you decided to leave your spouse a share of property below your state’s minimum elective statutory share, your spouse can reject the share under your will in favor of the minimum statutory share. In other words, your spouse most likely has a legal right to claim a third or other fraction of your estate.

Can you disinherit your other relatives, even though you may not be able to disinherit your spouse? Generally, you can in most states. This means that you can specifically omit your children as your legal heirs by stating such or not mentioning them. However, your state’s law may limit the disinheritance to existing children and not to children born after you created your will.  Its important to consult with a qualified estate planning attorney to make sure that your intentions are properly carried out.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

Continuing the discussion from the first two blogs in this three-part blog series covering the important duties that executors have in New York, this last blog covers the executor’s final duties.

Under New York law, an executor can become personally liable for repaying creditors if they distribute a decedent’s assets before properly accounting for all of the decedent’s creditors. As an executor, you should make sure you receive a written agreement from each beneficiary promising to return any property if you are unable to repay creditors or other debts the decedent was responsible for paying. You must also prepare a written inventory or accounting of the earned assets within the estate and the distributions you’ve made during your administration of the decedent’s estate. However, beneficiaries can waive a formal judicial accounting as long as they are of legal age to make those waivers.

It may be in your best interest as an executor of a decedent’s estate to conduct a formal judicial accounting to obtain a formal discharge from the Surrogate’s Court. Your formal accounting will contain your total commissions earned under the decedent’s will or pursuant to statute unless you waived your commissions. Typically, your formal accounting should be done by your estate planning attorney.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

Continuing the discussion from the first blog of this three-part series, executors should understand their legal duties. An executor has very significant legal obligations. Under New York law, executors must inventory a decedent’s assets, pay debts and funeral costs, and pay taxes and administration costs. An executor may be liable for several years until they wind up the entire estate and receive a formal discharge of their fiduciary responsibilities. New York law requires executors to consider creditors’ claims within seven months of their formal appointment. The executor will also be responsible for making sure they file the decedent’s final personal tax return and the estate’s final tax return, if necessary.

After notifying potential creditors of the decedent’s death, paying taxes and other expenses, they must distribute the decedent’s assets to the named beneficiaries. If the decedent died without a valid Will, the personal representative or administrator is responsible for locating all of the decedent’s heirs and distributing their assets to their heirs pursuant to the state’s intestacy laws. The intestacy laws dictate which heirs are entitled to receive a decedent’s property if they died without a Will and the amount of each inheritance.

Check our blog tomorrow to read part 3 of New York Law and Executor’s Rights and Duties.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.