Defending Claims Made Against You as Executor, Administrator or Trustee
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Will Contest Probate Litigation Attorney
Trustees, personal representatives, administrators and executors have a tough job. They are subject to constant questions, demands and threats from unhappy beneficiaries. Even decisions that are in the best interest of the trust or estate are called into question by those who do not understand why.
Relatives want to overturn the will, beneficiaries think the accounting is too slow in the making or lacks sufficient details; they want you to pursue a gift made by the decedent prior to death that the beneficiary thinks shouldn’t have been made. They have questions surrounding the creation of beneficiary designations and “pay on death accounts” and their demands appear irreconcilable. Sometimes a disinherited spouse or ex-spouse shows up or the deceased’s business partner demands the estate be settled to continue the profitable operation of the on-going business.
That’s where Hanlon Nimeann & Wright comes in.
We are experienced Estate attorneys with a strong litigation background. We focus early on dispute resolution which allows us to better understand the claims and motives of all sides so that we can assist in avoiding contentious and protracted litigation while remaining on the cutting edge of the law in the field of estate, probate and trust disputes.
Because of our significant elder law, estate and probate practice, executors, trustees and other lawyers in NJ call upon us for assistance to help resolve the issues of the case.
When dissatisfied beneficiaries or others file claims against you as an executor, administrator, or trustee, Fredrick P Niemann Esq., and Hanlon Niemann & Wright are ready to stand up for you. We appear in the courts of New Jersey advocating on behalf of our fiduciary clients.
I was lucky enough to have Mr. Niemann handle my affairs. He was so professional and compassionate during a very difficult time for me. My total experience was great.
– Arti Sinha, Marlboro, NJ
I found the members of the law firm of Hanlon Niemann to be friendly, professional, cost effective, prompt and creative. In short, I felt that I was in “good hands”.
– Daniel & Florence Donigian, Oakland, NJ
Whenever you use an accounting firm, or as in this case, a law firm, you expect technical excellence in the work they do. Hanlon Niemann & Wright delivers this. But to really exceed your expectations, a professional service firm has to wrap a broader service experience around the work they do, and the key elements of this experience are empathy, friendliness and an understanding of the client’s needs. This is where Hanlon Niemann & Wright truly exceed.
– Anthony Pisano, Freehold, NJ
Addressing the Issues that Confront a Fiduciary of an Estate
Fiduciary Defense Attorneys
Trustees and executors benefit from our litigation background but also from our extensive estate planning practice drafting wills, trusts, and estate plans. To litigate a case you need to be grounded in the real world of Estate Planning documents. Let’s use an analogy. Can you really be a lifeguard if you don’t know how to swim?
When you face claims related to breach of fiduciary duty, breach of duty of loyalty, allegations of fraud or other issue(s), we can serve as the trusted advisor and powerful advocate you need to help you navigate the probate process in New Jersey.
Contact Fredrick P Niemann Esq., of Hanlon Niemann & Wright today to understand all of your defense options. You can reach out to me toll free at (855) 376-5291 or email me at firstname.lastname@example.org .
DEFENDING ESTATES AGAINST A LAST WILL OR TRUST CHALLENGE
No matter what anyone else may tell you, all of us have the right to disinherit anyone we want from our will, the sole exception being a spouse without a pre-nuptual agreement (but even then they can only claim an “elective share”- read my discussion about the elective share later on this page).
Often the omitted person claims that there is something wrong with the Last Will, that it’s creator was too old, too sick, too vulnerable to the undue influence of another and/or they were tricked into making the will. The reasons go on and on. Then they look for “legal technicalities” to undue the will. A forged or suspicious signature, absence of two (2) attending witnesses, handwritten notes on the original document.
Their real reason for challenging the will is the fact they are not getting what they want, and they will make claims in hopes of getting a settlement out of the estate. It’s a strategy I see often used.
What happens is that the attorney takes the estate case on a contingency basis, meaning they get a share (typically one-third) of whatever the claimant collects. They never plan to go to trial. An executor will feel threatened by the challenge and offer a settlement (small or large) just to make the adversary go away. Depending upon the merits of the case as your advocate we’ll either engage in a dialogue or fight the claims and take them to trial. When the fees start to rise and they encounter real opposition, many claimants lose their combativeness and either give up the fight or settle for a much more reasonable amount.
If the objections are not withdrawn, we may file a Motion to Dismiss, which has the effect of throwing out the case without a trial because there is not enough evidence to successfully win at trial. If we think it’s in the best interest of the Estate so you can close the estate and distribute assets to their rightful beneficiaries with a small settlement or no settlement at all, we’ll consider that recommendation and lay it out to you in plain terms.
Defending Against Allegations of Executor Wrongdoing
Time and time again, we see beneficiaries accuse Executors of wrongdoing with no basis what so ever. Executors are wrongfully accused of misappropriating funds of the estate, overspending on estate expenses, selling estate property too slowly and at too low a price; and the list of complaints goes on. In our experience, many of these claims lack a basis in fact. What beneficiaries think are the unlawful or inappropriate action(s) of the Executor or Estate Administrator are often allowed under New Jersey laws. In such situations, we work with the executors to make clear to all concerned not only the law but the reality of estate probate. We attempt to resolve all misunderstandings. Unfortunately, when an executor, estate fiduciary is accused of stealing, they have to present an accounting to the court.
An accounting is a highly regulated process that requires having the estate representative list every asset of the estate, disclose every expense, and disclose all income and supporting documentation down to the penny. What usually happens then is that the attorney for the beneficiary presents demands for documents to dispute the accounting. An estate accounting can consume tens, if not hundreds of pages. If not satisfied by the disclosure(s), the attorney for the beneficiaries will file a list of exceptions about the accounting (also known as “Interrogatories”), who can then take an examination of the executor under oath together with witnesses and other relevant parties.
An estate Accounting is not cheap. You’ll need the assistance of an estate attorney and either a CPA or a forensic accountant who has experience with estate accounting(s). Because the estate has to pay for all of this, the result is less money for the beneficiaries. Beneficiaries are of course not happy about this added expense (which they themselves have caused most of), but that’s the reality.
After the accounting and all the supporting documentation and information is disclosed, it is then up to the parties involved to determine if they want to proceed to trial before a probate judge who will make a final decision for or against the accounting.
If you are an executor or estate representative who is accused of taking advantage of your estate, or dereliction of duty you can contact Fredrick P Niemann Esq., of Hanlon Niemann & Wright today. Reach out to Fred toll free at (855) 376-5291 or email him at email@example.com
Defending Pre-Death Gifts
We all have the right to make gifts during our lifetime. Yet those gifts can often be challenged after the person who made them dies.
The principle grounds for challenging a gift are; fraud, duress, lack of capacity, forgory and undue influence. I discuss these grounds extensively on many of the pages found on this website. Take a look at the Table of Contents.
Claimants allege the decedent “did not really intend to make the gift” and that they were taken advantage of. While the burden is on the claimant(s) to prove their case, we’ll help you disprove the claimants’ arguments by demonstrating that the donor made the gifts of their own free will. Although a few of the stronger cases can settle, we have the capacity to successfully defend most challenges to pre-death transfers of assets.
Defend Beneficiary Designations
Just with a Last Will and Trust, individuals are entitled to name whomever they want as beneficiaries of their assets, including stock and bank accounts, CD’s, annuities and real estate, for example. By operation of law those assets pass directly to the beneficiary, without going through probate and the Surrogate’s Court. Beneficiary designations are often challenged by those not named as a beneficiary or who received a lesser share of the probate estate than expected. Often the claim is that the person who named beneficiaries to their assets was deceived and/or misled prior to signing the beneficiary designation, or they did not know what they were signing. From my experience these cases can be the most challenging because many times the allegations are true but the law requires the people making those claims to prove their case. We posture the case to show the court that the person who created the beneficiary designation did so of their own free will, knowingly, purposefully, and without threats and/or undue influence. We will closely analyze claims of mental incapacity, fraud, and duress, to uphold the integrity of the decisions to name a beneficiary outside of probate through the lawful means of beneficiary designations.
Defend The Continued Service of the Executor, Administrator/Trustee
Beneficiaries of trusts & estates often times have a “personal” issue with the Estate Representative. They want him or her removed. They make all kinds of accusations and challenge the qualifications of the Executor including that the Executor cannot be trusted. The law favors the continued service of the lawfully designated estate representative because they were personally selected by the decedent and/or trust creator. A judge will not disqualify a person from appointment absent a serious breach of conduct or a real threat to the welfare of the estate.
If you are being intimidated and threatened by an Estate or Trust beneficiary, call me today. I’ll put your mind at ease. We’ll go over the facts together and analyze the real motives behind the accusations. You can reach me toll free at (855) 376-5291 or email me at firstname.lastname@example.org
Defense of Spousal Elective Share Claims and Divorce Settlement
The law does not allow a spouse to totally disinherit his or her spouse in the absence of a pre-nuptual agreement pending divorce or a few other grounds. It is important to see the matrimonial documents and to go over them closely. New Jersey law provides that an omitted spouse is entitled to one-third of the decedent’s augmented estate. A spouse is also entitled to assert a spousal claim to property gifted by the decedent to someone else before he or she died. Calculating the elective share is hard. Spouses often inflate the value of their elective share claim. They do not factor in estate expenses and debts plus other statutory set offs. If a spouse disagrees with the executor over the amount of the elective share, it is up to the spouse to prove to the court why the executor is wrong. We have significant experience in accurately calculating the statutory elective share. We handle many such claims against the state of New Jersey when they seek to file a lien against the estate of a Medicaid beneficiary and/or surviving spouse. We will advise and if necessary defend the estate against a spouse’s attempt to over value an elective share claim. Just call or email me today to set up an appointment.
Defending the Executor in the Transfer of a Business or Business Sale
An Executor assumes control over the ownership interest of a decedent’s business or business interest until it is transferred to the designated beneficiary OR transferred to a surviving partner pursuant to a written shareholder, partnership or LLC member operating agreement. During this time significant financial and operating decisions fall to the Executor to maintain profitability and structure. The beneficiaries however just want their payout. We work closely with the executor/trustee to ensure that the business survives coherently until the time comes when control and ownership is diverted. We’re practical and business friendly in our approach. Since we represent businesses, shareholders, partners and LLC’s we are familiar with succession planning agreements including; buy-sell agreements, etc. Put our strong business experience to work with you as the Executor in charge (EIC) of the decedent’s business affairs.
Defend Claims By Creditors and Others Against the Estate
After a person dies, all kinds of people and entities make claims against the estate. The most common claimants are creditors, as well as those parties I have discussed previously, including; business partners, life partners, ex-spouses, the IRS, and Medicaid. Many times the claimants cannot prove their allegations but even if they can, it is often overstated monetarily. We’ll evaluate the claims of creditors, Medicaid, the IRS and others who file lawsuits or liens for payment. Legitimate debts and liabilities can and must be paid. In fact, as the executor, administrator, or trustee, you can be held personally liable if you disburse funds without first taking reasonable efforts to search out known or likely creditors and priority statutory lien holders. Don’t go it along, reach out to me today.
Finalize And Close Out the Estates
I hope you found this page informative. I’ve written extensively on probate administration in my dedicated website entitled www.njestateadministrationlawyer.com Go to it and learn even more about your role as executor, administrator, trustee and fiduciary. Remember if you need assistance I’m just a telephone call or email away. (CLICK HERE)
If you are the executor or administrator of an estate or trustee of a NJ trust under attack by beneficiaries and need to protect yourself from the claims of beneficiaries and/or others, please contact Fredrick P. Niemann, Esq. today, toll-free at (855) 376-5291 or email him at email@example.com.
You’ll find him to be very knowledgeable in will contests and probate disputes and easy to talk to.