Proven Long Island Estate Litigation Attorney Ready To Fight For You
Estate litigation is the method of devising strategies designed to address, or even avoid altogether, the many challenges that can arise during probate. However, even with proper planning, disputes raised by heirs and/or creditors can create legal issues that require estate litigation. These cases aren’t limited to the rich and famous.
If you or someone you love needs legal advice and/or representation regarding estates or trusts, contact our experienced Long Island estate litigation lawyer.
Types of New York Estate Litigation
Probate is a legal proceeding by which the property and assets of a decedent are collected and distributed to heirs. There are many circumstances that can arise which can require estate litigation, including, but not limited to:
Will and Trust Contests
One of the most common estate disputes is the contesting of a will. A will can be contested on several grounds. The increase in blended families and second families has increased the complexity of the distribution of estates.
Family members who have been left out of a will, children who have been specifically disinherited by a parent or anyone who feels that a will should not be declared valid have a right to contest a will. When doing so, there are important questions to answer:
- Did the decedent possess the testamentary capacity to sign the will?
- Was the decedent influenced by duress or pressure?
- Was fraud involved?
- Were amendments made?
- Was the will executed properly with 2 disinterested witnesses?
- Are there ambiguities in the will that question the testator’s intent?
Some of the grounds upon which a will can be contested are:
- Improper Execution of the Will
- Mental Competency of the Testator
- Fraud or undue influence
- Discovery of a second will
If you have questions about any of the above matters please contact our knowledgeable and helpful Long Island estate litigation lawyer.
A beneficiary of an estate is entitled to an accounting by the executor, administrator, or trustee. The accounting must contain a listing of all assets received, income earned, gains and losses from investments, expenses, and distributions. When the accounting fails to list all of the assets or indicate losses due to mismanagement or improper expenses or an executor causes inappropriate losses to an estate or trust, the executor may be held liable for these losses and ordered to reimburse the estate
Breach of a Fiduciary Duty
There are times when a beneficiary should object to the actions of the fiduciary and initiate legal action against him/her. Grounds for such a lawsuit include:
- Removal of property from an estate without approval
- Transfer of assets from an estate to the fiduciary during the process of administering the estate (self-dealing)
- Financial negligence in handling assets during the process of estate administration including failure to properly invest and account for those assets
- Failure to conclude the administration process in a timely manner
- Failure to provide necessary information to beneficiaries and other interested parties
- Failure to correctly follow the terms of the will and/or trust
Surviving Spouse’s Right of Election
New York law protects the inheritance rights of a spouse. Under the law, a spouse is entitled to an “elective share” of the assets which is defined as the greater of $50,000.00 or one-third of the estate and which includes property such as joint bank accounts and certain assets that are known as “testamentary substitutes”.
A spousal right of election can be filed by a surviving spouse who has not inherited assets that are at least equal to the elective share of the estate. The statute of limitations for filing a spousal right of election is six months after an executor or administrator of an estate has been appointed.
Contact Our Skilled Long Island Estate Litigation Attorney Today
Estate Litigation can be an extremely complex and drawn-out process. If you or someone you know has an interest in this type of situation and is seeking representation for this kind of case in Nassau County, Suffolk County, Manhattan, Brooklyn, Bronx, or Queens, they should contact our experienced estate litigator, Andrew M. Lamkin.
Our experienced legal practitioner also handles other types of cases, including:
- Elder legal matters
- Estate planning matters
- Medicaid cases
- Probate matters
- Trusts and wills cases
- Special needs matters
- Advanced directives
Call the Law Office of Andrew M. Lamkin, P.C. and speak with an experienced Long Island estate litigation attorney or contact us online to schedule an appointment. I am available to meet with you at your home or my office.
FAQ Answers – Estate Litigation
What’s the Difference Between Estate Litigation and Probate in New York?
Generally, probate refers to the legal process an executor goes through to resolve a deceased individual’s estate. Probate is validating a deceased’s will in New York Surrogate’s Court. On the other hand, estate litigation refers to any legal dispute involving the assets of a person who has died. Probate litigation is a specific part or subset of the larger umbrella of estate litigation.
Estate litigation can also refer to the legal process of handling conflicts over distributing non-probate assets, including assets a decedent passes to beneficiaries through a trust or other legal conveyance that avoids probate proceedings. Estate litigation often involves handling conflicts and disputes that arise when the deceased dies, including disputes over property, financial assets, guardianship, and attempts to invalidate a will.
What’s the Difference Between a Life Estate and an Irrevocable Trust?
A life estate and an irrevocable trust ensure property is transferred to the designated party as a part of an individual’s estate planning.
They are two different methods, each with advantages and disadvantages, and often work best in conjunction.
A life estate is one way to gift property. It divides ownership between the giver and receiver. A common use of a life estate is by parents seeking to reduce their financial assets to qualify for Medicaid. In this case, the parent still retains interest in the property during their lifetime. Still, it cannot be counted as an asset for qualifying for state and federal assistance.
Although the gifter retains interest in the property for the remainder of their life, they are generally prohibited from selling it without the beneficiary’s consent.
An irrevocable trust allows you to place your assets or properties into a trust, but you cannot change, modify, or cancel it except under limited, specific circumstances. In other words, you are essentially relinquishing control of the assets to the trust, and once you die, the assets will be distributed to the beneficiaries. One disadvantage of an irrevocable trust is that the creator relinquishes their rights to the assets.
However, an irrevocable trust has benefits similar to a life estate, allowing you to transfer assets to qualify for low-income programs such as Medicaid.
There can also be tax advantages to an irrevocable trust that an experienced attorney can discuss more thoroughly with you.
In sum, an irrevocable trust is a separate legal entity that assumes ownership of the asset and manages it on behalf of the beneficiaries. On the other hand, a life estate is simply a deed of ownership that allows the gifter to retain partial ownership of a property during their lifetime.
What Is a Qualifying Surviving Spouse?
A qualifying surviving spouse is a term used for tax filing purposes. It allows a surviving spouse to retain the benefits of married joint tax filing status for two years after death. To qualify, the surviving spouse must not have remarried and also have a dependent child.