1. You have a lawyer for your personal matters and perhaps for your business. Many people have strong relationships with excellent lawyers that they trust. Trusted advisors should be relied on to work with subspecialists in order to make certain that your rights are protected. In some instances, people may attack the fiduciary and his conduct. They claim that their inheritance was defeated due to a fiduciary breach of duty or mismanagement, and they may seek to deny the fiduciary earned commissions. Estate litigation attorneys will protect your rights, whether you are looking to defend or, alternatively, challenge the actions of the estate attorney and others involved in the decedent’s estate planning.
2. You want answers and perhaps not a fight. The law clearly allows for this approach and if you are not careful your efforts will be perceived incorrectly or as a fight. Beneficiaries and distributes have an absolute right to ask: Why? With the proper guidance answers can be obtained without a full-blown fight.
3. The decedent told you or the estate attorney that there would be problems. Problems often originate from individuals likely to complain, estranged relatives, family or friends, caregivers and sometimes even charities.
4. Your instinct that something is off or simply not right is often correct. Many clients cannot state with exact certainty what is wrong, but they know something is not right. For example, many clients are appointed as the Executor only to find that they are faced with attacks on the estate, hostile creditor claims or worse yet, a sibling who claims that the deceased parent deeded the family house in its entirety to that sibling before death.
5. You acted as the decedent’s power of attorney during her life. Now, on her death all of your hard work and faithful service is being unfairly scrutinized and criticized by people who were nowhere to be found during all of the times of decedent’s need.
6. The decedent’s power of attorney abused the power of attorney powers. Sadly, this unlawful misconduct is common and often gets past the survivors. In many cases the power of attorney is used to make gifts to oneself, family or others. In other cases, the power of attorney is used to take money out of decedent’s bank accounts in manners that abuse the trusting relationship. In some instances, the power of attorney is used to retitle assets from the name of the decedent into the power of attorney’s name alone.
7. The estate attorney is called upon to testify. The law in New York allows persons who may object to a will to require the attorney draftsperson and the subscribing witnesses, as well as the nominated executor to testify under oath in the courtroom with the Surrogate Judge present as to how the will came about and the circumstances of the signing. Another instance where this arises is where the estate seems to be far along and wrapping up and a financial accounting of the affairs of the estate is being scrutinized. While the first witness in court is often the fiduciary, the lawyer handling the estate may be examined as a witness with respect to her actions and her fees. An estate litigation attorney can help prepare the estate attorney and other witnesses to testify and present a strong case.
8. There was a divorce. Your parents divorced many years ago and that matter has long since been closed. The decedent, your father or mother, remarried a person with another family, i.e., often their children. On your father’s death, his surviving spouse asserts that there is nothing in the estate for you. In fact, you are provided with a copy of his will and it states that everything passes to her – his loving surviving spouse. On its face the answer sounds plausible, however, the trap for the unwary is failing to ask what your father’s separation agreement or divorce decree may say with respect to how he may have provided for you on his death in connection with his divorce from your mother.
9. The gross estate simply seems too small. You may be the fiduciary tasked with handling the estate and you sense that assets may be missing or undisclosed. It seems that bank statements may be missing or that there are actually items of property that you believed the decedent to own that are in the possession of others. A legal action or lawsuit can be commenced to recover that property or to discover the true facts as to the missing assets.
10. Life and insurance and other assets with designated beneficiaries. A very common approach to planning the modern estate is to utilize life insurance and designate beneficiaries for it as well as for 401k and other retirement assets and accounts. The beneficiary designation transactions generally require a higher degree of capacity on the part of the decedent. The standards are not simply those that relate to wills, but rather are what are commonly referred to as the contract standard, rather than testamentary standard. Sometimes this legal standard makes it more difficult to defend the validity of the transactions. Sometimes signatures are unwitnessed and forged. In those cases, the beneficiary designations are highly susceptible to challenge and more difficult to defend.
