We specialize in Estates in New Jersey. We see abuses in the system on a regular basis and know how to respond. The Chancery courts can be confusing places for those without legal training. We consider it our mission to make the process understandable to our clients and give them the peace of mind that their case is effectively moving through the system to a satisfactory result.
NEW JERSEY ESTATE LITIGATION
There are a great many forms that a New Jersey Estate Litigation can take. Although the various “causes of action” are complex, most of the law can be boiled down to the following statement: “If it doesn’t feel ‘right’, then it probably isn’t.” If you feel like you, a loved one, or an Estate are being mistreated in some way, the best thing to do is contact an attorney for a consultation about your particular facts. The categories listed below are solely for illustration of different types of suit and should not be taken to be an exhaustive list.
In general, challenges to a will take on two forms. First, that the Will is defective in some material way; second, that the Will does not represent the last wishes of the decedent.
Some of the things that the courts will look at with a defective Will is, first and foremost, whether it meets the formal requirements of a Will in New Jersey. For example, whether the Will has two witnesses and has been signed by the Testator in the presence of those witnesses. In rare circumstances, a Will that does not meet the formal requirements can be probated. However, it is extremely rare that a Will offered for probate does not meet the formal requirements and even rarer still that the courts would allow such a will to be probated.
A challenge to a will for not being the true last wishes of the Testator is much more likely. The most used legal theory for challenging a will in this circumstance is called “undue influence”, although there are other ways such as lack of legal capacity at the time of signing and coercion. “Undue influence” is exactly like it sounds like. A person exerts their wishes on the Testator so much that the Testator isn’t actually in agreement with what is in their own will. Most often this is seen when there is an overbearing relative and the Testator is mentally fragile–although maybe doesn’t completely lack capacity.
Another fairly regular action in Estate Litigation is for an accounting. After one year, the beneficiaries are entitled to have an accounting of how the Estate Representative has spent the past year. It is admittedly rare in practice for the beneficiaries to recieve an accounting if they do not ask for it. This is because it is extremely time consuming and expensive to create formal accountings. Usually, this type of action is used when the beneficiaries have suspicions that the Estate Representative (or maybe even the Power of Attorney during the lifetime of the Testator) was wasting funds or poorly managing the Estate. It is often directly tied with the next cause of action, Challenging a Power of Attorney or Estate Representative. Sometimes, applications for an Accounting end directly after the accounting is tendered because nothing is wrong with what is occuring.
The most likely challenge to a Power of Attorney or Estate Representative (for simplicity sake “Agent”) occurs when the Agent is financially abusing the individual or Estate. This can be anything from taking unwarranted cash distributions to themselves or selling/divesting assets for under market value. As such, it is usually tied with an action for Accounting. However, there could be other reasons to remove a Power of Attorney, such as failure to comply with “fiduciary duties”, including the duty to keep the beneficiary informed of what is occuring.
If there have been questionable transactions prior to the decedent’s passing that are either known prior to the application to the courts or are discovered during an Accounting, the Applicants can seek to have the transaction overturned in some circumstances.
A “springing” power of attorney is the direct opposite of the regular power of attorney. It will not transfer any power until a person becomes incapacitated. Generally speaking, the powers conferred are much the same as a regular power of attorney. It is just a question of when it confers those powers. Generally speaking, we do not recommend these (your mileage may vary) because family members will tend to write checks prior to a declaration of incapacity, which can lead to unwanted “gray areas”.
A durable power of attorney is the combination of these two time period. It is effective before and after a declaration of incapacity. Therefore, the durable power of attorney is usually the best document to avoid the cost and delay of a guardianship proceeding.
When a decedent passes without a Will, their Estate is considered intestate. Without a will, the decedent will not have named anyone to represent their Estate. Therefore, someone needs to apply to the Surrogate to become the Estate Representative. Sometimes, more than one person makes an application to the Surrogate or there is more than one person eligible to become the Estate Representative. In those cases, a Chancery judge needs to determine who the Estate Representative will be.