A will contest is when two or more legal heirs of a deceased person are fighting over the assets in a will. An objection to a will by the probate office is when the will does not comply with the basic guidelines of will formation. This is a different hurdle, and is more difficult to overcome. I will first discuss the objections to a will by the probate office. In New Jersey you do not need an attorney to write a will, you just need to write out your wishes and have it notarized and two witnesses. However, if you think that there will be any legal heirs who might contest this will, then it is best to have an attorney draft the will and to sign on as a preparer. Some of the basic ingredients of a will are that 1) the debts of the decedent must be paid first; 2) an executor/executrix must be appointed who manages the estate and distributes the assets under the will; 3) there should be a beneficiary, a person who inherits under the will; and 3) funeral instructions/directives on how the remains of the deceased should be taken care of. One general misconception is that the executor/executrix cannot or should not be the beneficiary. This is not true. Especially if there is only one beneficiary. Who else has more of an incentive to wrap up the estate, pay any expenses and to distribute the assets to themselves? The exception is if the beneficiary is under 18 or is not competent enough to complete paperwork with the assistance of an attorney. Then it is best to have the executrix/executor be someone other than the beneficiary. However, if this will does not have all the necessary components, then the will will be disregarded by the court, and you will die without the protection of a will. Your loved ones may not inherit your estate per your wishes. Your assets will be distributed by the rules of the state.
Will contests are a different ball of wax. In will contests, legal heirs, children, spouses, siblings, parents, etc. of the deceased may raise a host of objections to the will, even if it was already accepted by the probate office. The following are some guidelines that may assist in preventing a will contest: Always mention the full legal names of the heirs and their relationship to the testator (person creating the will). For example, “I am leaving the residue of my estate to my sister, Joanne June Allen (nee Smith) of Pittsburgh, Pennsylvania.” The reason being is that the same names are frequently repeated in a family. If the person has more than one child/parent/sibling and the testator wants to leave the other children/sibling/parent out of the will, then always mention the other children/sibling/parent that you are leaving out of the will by name, but specifically state that they are not going to receive anything under the will. For example, “For my son Jeffrey Mark Allen and daughter Sara Lesly Allen, I am leaving them nothing under this will.” Do not provide a justification in the will for not leaving this person something under the will. For example; Don’t use something along the lines of “I am not leaving Jeffrey Allen anything under this will because they never called me on my 80th birthday” or “because he changed his religion.” If this person is a legal heir and they have the resources then they can make a case in court that or he or she called you on your birthday or that they did not change their religion. A caveat (objection) raised by a legal heir can cause expensive legal problems for the beneficiary or beneficiaries under your will. Talk with an attorney about other ways to safeguard your estate against any objections either by the probate court or by people who might feel they should receive more under your will.
|Raymond is experienced in a host of different areas, including Immigration, Criminal, Divorce & Family Law, Wills & Estate, Incorporating your business as well as advising small businesses with their tax and investment choices.|