Probate Law 102: No Contest Clause In A Will
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that the unsuccessful challenge of the validity of the will by a beneficiary will result in the inheritance being withdrawn.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- Based on probable cause, an argument can be made that the will was revoked by a later will or that the will is a forgery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.
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New York Inheritance-Death Tax Rate Laws:
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. Roman Aminov has written extensively on this topic. Inheritance and estate law literally go hand in hand with medicaid compliance. For example, 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 the publications of Roman Aminov. View Roman's article on medicaid eligibility and qualifications in NY now. Don't forget that you can reach out to Roman now and schedule your very own sit-down medicaid planning consultation at his 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.
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 a way 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 have very often resulted in complicated affairs due to a lack of communication and understanding between the attorney and the beneficiaries. The key to avoid 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 hiring. 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 The Probate Process In New York Really Works
Have you ever wondered how your estate’s assets would be distributed once you are gone? Perhaps you have drawn up a Last Will or Living Trust. But, what if you die without leaving a will or an estate plan? That’s where probate comes in.
It’s the legal way that the estate of the decedent gets settled under the supervision of New York probate court. The whole probate process begins with the appointment of an estate representative or executor -- a person nominated by the deceased’s Last Will (usually a surviving spouse/child) or someone appointed by the court if there’s no Will. Once named, the executor will have legal rights to collect and appraise all the assets owned by the deceased estate, pay off accrued debt, bills, taxes, and, eventually, distribute the remaining assets to the beneficiaries or heirs.
Of course, the entire probate process is far more complicated than that. For starters, it can take up to nine months of back and forth in the court, and cost oodles of money in the process. So, why is probate necessary?
The primary goal of probate is to keep fraud at bay once someone dies and allow ample time to probate the will. It freezes the estate so that the judge can ascertain the validity of the Will, as well as make sure that all relevant parties are notified, that all assets have been identified and valued, and that all applicable taxes, bills, creditors, etc. have been duly paid. Not all estates, however, have to go through probate.
When is Probate in New York Not Needed?
When the Estate is a “Small Estate”
If the total value of an estate is under $30,000, it’s taken as per NY law to be a “small estate,” and doesn’t have to go through probate.
When All the Assets are Not Subject to Probate
Certain types of assets are not subject to probate in New York and can be transferred automatically to beneficiaries upon someone’s death. Such assets include joint tenancy assets, tenancy by the entirety, beneficiary designations (life insurance policies, etc.), TOD, POD, and brokerage accounts.
When there’s a Living Trust
If the decedent had drawn up a Living Trust to hold his or her assets, the surviving beneficiaries and heirs would not have to go through the harrowing probate process.
Important Steps in Probate Process
There are three critical steps in the probate process.
Phase I: Petitioning for Probate
This phase starts with filing a petition to the probate court. The objective of this step is to convince the court to issue a decree validating the Will as well as appoint an executor of the estate (if there’s no Will).
- The Will has to be filed in the Surrogate’s Court in the county where the deceased was a resident, and within a statutory period (after the death).
- The petition is a formal request for appointment of an executor. At this stage, all the beneficiaries, heirs, creditors, and other parties are notified as directed by the court.
- Once the court is satisfied with the will, credentials of the executor and all the parties have been notified, it then issues Letters of Testamentary to the personal representative/executor of the estate.
- Creditors have up to seven months to make a claim.
Phase II: Administering the Estate
At this stage, the executor will gather, determined, and make an inventory of all the deceased’s assets -- and then submit it to the court for review within six months of his or her appointment. It’s the responsibility of the executor to settle any debt and pay all bills and taxes associated with the estate. Once done, the executor will then file a petition with the court to close the probate.
Phase III: Distribution, and Closing the Estate
Once the court satisfied, it then orders the executor or estate representative to distribute the remainder of deceased’s assets to the right heirs and beneficiaries. The executor is legally entitled to a statutory fee which he or she can take or forfeit.
Wills 101: Understanding Estate Planning Costs
Estate planning is the perhaps the smartest move you can ever make to safeguard your loved ones after you pass on, and ensure your care in case of incapacity. The truth of the matter is that estate planning is not a cheap affair. In fact, a recent survey confirmed that more than 66 percent of Americans consider estate planning to be out of their reach.
If you have been putting off the idea of planning your estate, the chances are that you are concerned with the associated costs. So, how much does estate planning actually cost? Right off the bat, I must confess that the cost of an estate plan can vary significantly depending on a number of factors, including whom you choose to be your attorney.
The trick to keeping estate planning costs low is to start small and bring in additional features later. If you want a basic estate plan, for instance, start off with a combo of Healthcare Durable Power of Attorney (popularly referred to as healthcare PA) and Durable Power of Attorney. As you might expect, this package will not give your family 100% peace of mind.
Take It Up a Notch
Once you’re ready to take the next step, it’s high time to add beneficiary designations, Paid on Death and Transfer on Death Accounts, as well as beneficiary deeds. The good thing about these additional estate planning documents is that they’ll help your loved ones inherit your estate without the need to go through probate process (which is a huge headache).
To make sure that estate transfer is as smooth and hassle-free as possible, it’s also wise to add a well-structured Last Will and Testament. These two documents will go a long way to protect your loved ones and make sure your assets to go the right person at the right time without the interference from courts and judges.
Revocable Living Trust
For most people, including a Revocable Living Trust is the last step in estate planning. And for good reason. RLT is not only one of the most complex documents in estate planning, but it can also become quite expensive to draw up.
All in all, drawing up an estate plan is a significant financial undertaking. All of the documents above are complex in their own right, and even a slight mistake can jeopardize the whole Trust. If you want to get a good picture of how much estate plan will cost you, however, it is important to seek counsel from a reputable estate planning attorney.
4 Secrets to Saving On Estate Planning Costs
Tip #1. Talk About the Fees Up Front
Most estate planning attorneys offer a free, no-obligation consultation. Even before you go to this meeting, call or email your potential attorneys to inquire about what and how much fees they charge. Most attorneys charge a flat-rate fee or by the hour. If he or she charges by the hour, for instance, inquire further about the rate and get an idea of how long the process will take.
Tip #2: Get to Know What You Need
Before you meet with an attorney, it pays to get a feel for what you need in your estate plan. It might be helpful to consult with your financial advisor or read up on estate planning material. Either way, be sure to know a little about the durable power of attorney, healthcare durable PA, last will, testament, and perhaps trusts.
Tip #3: Be Decisive and come Prepared
Inquire about what you need to bring to the attorney. Do you have to pay for an initial consultation? Will you pay the attorney fees up front? Get answers, but most importantly, meet your attorney when you are fully decided.
Tip #4: Hire the Right Attorney
Not all estate planning attorneys are created equal. Get recommendations from friends, family or colleagues you trust. And don’t just take their word for it -- it’s best to read reviews, contact references, etc. before making the hiring decision.
How Estate & Probate Law Became A Way Of Life
For example, in Judaism and Islam, men play a more dominant role in inheritance. This means that by default the assets goes 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 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.