IS YOUR FAMILY FIGHTING OVER A WILL OR A TRUST?
ARE ACCUSATIONS BEING MADE OF FRAUD, UNDUE INFLUENCE, LACK OF MENTAL COMPETENCY IN THE MAKING OF A WILL?
DO YOU WANT TO KNOW HOW TO CONTEST A WILL OR TRUST?
DO YOU SUSPECT WRONGDOING BY A BENEFICIARY WHO IS GETTING MORE THAN THEIR FARE SHARE OF AN ESTATE?
IS AN EXECUTOR OR ADMINISTRATOR ABUSING THEIR AUTHORITY AND/OR IGNORING YOU?
ARE YOU AN EXECUTOR OR ADMINISTRATOR DEALING WITH A BENEFICIARY FROM HELL?
YOU MAY BE EMBARRASSED TO SAY “YES”, BUT THE TRUTH IS YOU’RE NOT ALONE, WE UNDERSTAND.
Written by New Jersey Medicaid Attorney Fredrick P. Niemann, Esq.
It’s an old tale. Ever since ancient laws were swept away by the right of everyone to make a will, heirs and beneficiaries have objected to even the best made wills and trusts. Conflicts among family members, heirs and executors can arise before or during the probate of an estate.
Maybe you are a beneficiary who feels they are getting the runaround from an executor, trustee or personal representative. They aren’t answering your calls, your letters, or haven’t sent you the money you were promised. Often times there are reasons for a delay in estate administration. Sometimes delays are caused by various questionable circumstances, such as the testamentary capacity of the deceased to sign a will or issues surrounding the actions of a power of attorney and the misuse of the power of attorney by the person appointed, undue influence, conflict of interest and self dealing.
Often times, however, executors just do nothing or make excuses for their poor performance. You may be hesitant to take action but you know you need help and you need the help of an experienced probate, trust and estate litigation attorney in New Jersey who knows estate, trust and probate law. You also need a seasoned trial attorney to deal with difficult family members or an unreasonable executor/trustee, creditor or beneficiaries. But at Hanlon Niemann, we don’t litigate just to litigate. We’ll first try to mediate the disagreement in a practical and responsible way, preferring the mediation of probate disputes and will contest where possible consistent with our client’s rights, goals and instructions. Fredrick P. Niemann, Esq. of Hanlon Niemann litigates tough probate and estate disputes. We’re experienced probate trial attorneys with an extensive background in probate and trust law and litigation. We have been involved in hundreds of cases, many just like yours.
I knew I needed an attorney, but could I afford one? Would he or she be experienced and someone I could trust and talk to openly and in confidence?
I was referred to Fredrick P. Niemann. I was warmly greeted and my appointment promptly kept. I was given all the time I needed to ask questions and talk about my needs and concerns. I was quoted a fee that was appropriate and reasonable for my matter. My attorney gave me answers and advice. He was a counselor at law and in life. Calling Fredrick P. Niemann was the right decision.
—Nick Alfano, Morganville, NJ
My wife and I wanted to express our gratitude for the guidance and patience from you and your staff along this journey. Life is strange at times and the things that bring us together can be just as strange, if not more.
I not only got to put a few bucks in the bank, but got to reconnect with my cousin Sarah, which was a great surprise for me. That alone was worth the journey for me. Getting to know her and the family has been really nice.
I know it was a long day for all of us in mediation, but I really am blessed to have gotten to know you and talk with you. I admire your skills, work ethic and attitude regarding time and Patience. When the opposing attorney was running her big mouth and doing her thing, you never lost your composure, nor your position. I’m hoping it’s one of the nuggets I’m able to take and implement in my personal/professional life.
The short version of this story is that you have a lot to offer people, you’re a true, trusted advisor. Your words and actions seem to align with your values, which is like common sense, very hard to come by now a days. Your staff does a great job as well. Please let them know that as often as you can.
Keep up the good work Fred and thanks again.
- Mike Price – Plainfield, IN
Click HERE to view a personal message from Mr. Niemann
Do You Need an Attorney to Review a Will or a Trust and Explain its Provisions to You in Simple English Before Filing a Lawsuit?
The fact that a person leaves a will does not guarantee that property will be distributed according to the expressed terms in the will. Frequently, heirs object to even the best made wills and trusts. Conflicts can arise before or during the administration of an estate or a trust. There are many types of disputes that can arise. If bad faith or poor stewardship of an estate or trust is involved, a court will often provide an opportunity to allow family members, heirs and beneficiaries to object to the will or trust, and a challenge may be brought by anyone who feels the will is inaccurate or invalid in some way.
Everyone has the right to dispose of his or her property as they wish, without consideration for the wishes or opinions of family, friends or anyone else. It is possible, however, to set aside a will or trust. A person contesting the estate plan must prove that at the time the Last Will or trust was signed, the deceased lacked the requisite mental capacity, or that the will or trust was procured as the result of undue influence, fraud or duress. Also, some wills or trusts are invalid because they were not properly executed or constructed. For example, wills must be signed before two witnesses and notarized, except for holographic wills written in the hand of the testator (the person whose will it is). Another example is if the witnesses signed the will after the fact and did not actually see the decedent sign the will, then the will may be thrown out as invalid.
If a will is contested and invalidated, if there is a valid prior will or trust, the court will go back to the earlier document and distribute the decedent’s assets in the manner it provides. If there is no valid prior will or trust, then the decedent’s estate will pass through probate as if he or she died without a will at all, known as dying “intestate”, or dying without a will.
Be advised that many wills and trusts have “no contest” clauses that are designed to discourage will contests. This means that if you are a “no contest” heir and you contest the validity of a will and you lose, then you may be disinherited by operation of the no-contest clause. But these clauses are not always upheld.
BREACH OF FIDUCIARY DUTY BY A NJ EXECUTOR OR NJ TRUSTEE
Executors and trustees owe a fiduciary duty to the heirs and beneficiaries of the estate. A fiduciary duty consists of a duty of good faith and fair dealing, and a duty of competency and due diligence. A fiduciary must always consider the best interests of the trust or estate before his or her interests. When an executor or trustee profits from his or her position, other than earning agreed-upon compensation or statutory commissions, 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 or trustee can be held personally liable for the loss.
FAILURE TO ACCOUNT TO BENEFICIARIES BY A NJ TRUSTEE OR EXECUTOR
Trustees and executors have a duty to keep all estate assets separate and identifiable, and to account to the beneficiaries for all monies coming into and going out. For probate estates, the court will not allow probate to end until a satisfactory accounting is complete. If the trustee of a trust fails to provide a proper accounting, the beneficiaries can file a petition seeking a court order compelling the trustees to do an accounting. Trustees who fail to properly account for their actions may be removed by the court.
The court will order them to account if they do not do so, unless all of the beneficiaries agree to waive such an accounting. If the executor or trustee has failed to keep records, or if they have failed to keep estate property separate from their own, a breach of their fiduciary duty is presumed.
CONTRACT TO MAKE A WILL: IS IT ENFORCEABLE IN NJ?
Frequently, people make promises they never keep. Some of these promises relate to wills and trusts, such as when a parent verbally promises to leave all or a portion of their estate to a child upon their death. When a promise isn’t fulfilled, sometimes it is possible in NJ to enforce what the courts call a “Contract to Make a Will.”
As a general rule, agreements to make a bequest of 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 and that is 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 a Breach of Contract to Make a Will in NJ would apply:
Although there has been a national trend toward recognizing tortious interference with inheritance in the last decade, New Jersey has been slow to embrace the claim and as a result, relatively little precedent exists in New Jersey. But this author likes the basis of the claim and has and will continue to assert it in the future under the right facts.
Basically the claim alleges that someone intentionally perpetrated fraud, duress or other tortious means to prevent another person or organization from receiving an inheritance or gift that he or she would otherwise have received but for the fraud etc. The person found to have caused the loss is subject to liability to all beneficiaries for the loss of the prospective inheritance or gift.
A plaintiff must prove with reasonable certainty that he or she would have realized the inheritance but for the defendant’s tortious acts. This proof must show a “high degree of probability.” Plaintiff must also show economic injury as a result of the defendant’s tortious conduct. Most often, the economic loss (commonly called damages) is measured by the value of the property that would have been received but was not because of the misbehavior.
Punitive damages and damages for emotional distress may also be available. However, damages for emotional distress have only been awarded against the person(s) who caused the distress and not against the decedent’s estate.
There has been a recent unpublished opinion by a New Jersey trial court allowing an action by an heir for “the waste or destruction of his inheritance, by other beneficiaries and third parties that occurred before and after the death of the owner. Such a claim is significant because if successful, New Jersey law allows treble damages against the party causing the loss of estate value.
To contest a will you need to first have a will, and then it has to be found. There is no such thing as a Will registry where all signed wills are filed as a public record prior to death. But when a will has been probated with the County Surrogate’s office, “interested persons and their representatives” may conduct a search of the registry. New Jersey probate laws define an “interested person(s)” as “children, spouses, potential heirs, devisees, fiduciaries, creditors, beneficiaries, and any others having a property right in or claim against a trust, estate or the estate of a decedent which may be affected by a legal proceeding”.
Contact us today
To speak with a knowledgeable trust and estate attorney, please call Fredrick P. Niemann
toll-free at (855) 376-5291 or
e-mail him at firstname.lastname@example.org
and set up an office consultation at your convenience to discuss your matter. He welcomes your calls and inquiries and you’ll find him easy to talk to and very approachable.
Please see our related websites that discuss will contests and matters relating to probate and estates: