Probate & Estate Litigation in New Jersey
Is your family fighting over an estate or trust? You may be embarrassed to say “yes,” but the truth is, you’re not alone.
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
Maybe you are a beneficiary who feels they are getting the runaround from an executor, trustee or personal representative. You feel like they aren’t answering your calls, your letters, or haven’t sent you the money you were promised.
Sometimes there are delays in administering an estate in probate caused by various questionable circumstances surrounding the will or trust, such as the testamentary capacity of the deceased person to make a will or maybe an agent misused the power of attorney when appointed; perhaps there is a claim of undue influence, conflict of interest and self-dealing being made. An experienced NJ will contest and estate dispute attorney can analyze and address those questionable circumstances in a timely and effective manner.
PROBLEMS WITH A WILL:
CAN YOU CONTEST A WILL IN NJ?
The fact that a person leaves a will does not guarantee that property will be distributed according to the expressed terms of the will. A court will generally provide an opportunity for individuals with claims to object to the will, and a challenge may be brought by anyone who feels the will is inaccurate or invalid. These types of cases are often difficult and emotionally charged, so it is important to find an attorney with whom you feel comfortable and who is knowledgeable about such proceedings.
At Hanlon Niemann and Wright, we have experience in litigating tough family disputes. We are experienced trial attorneys with an extensive background in probate law and litigation. In any dispute, we first try to mediate the disagreement in a practical and responsible way, preferring mediation and conciliation where possible consistent with our client’s rights, goals and instructions.
VALIDITY OF THE WILL OR TRUST
Frequently, heirs object to even the best made wills and trusts and conflicts can arise before or during the administration of an estate or a trust. There are many types of disputes that can arise. Here are a few examples:
As a matter of law 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. Yet it is still possible, to set aside a will or trust. A person contesting an estate plan must prove that at the time documents were signed, the deceased person lacked the mental capacity (meaning “an understanding), 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. For example, wills must be signed before two witnesses, except for holographic wills written in the hand of the testator (the person whose will it 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.
When this happens, 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 the earlier documents mandate. 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.
Sometimes a will or trust will contain a “no contest” clause designed to discourage lawsuits and courtroom contests. This means that if you are an heir and you contest the validity of a will and you lose, then you may be disinherited by operation of the no-contest clause. Many no contest clauses are not enforceable in NJ, but some are. The case must be carefully evaluated.
Actual Client Testimonials
I was in a panic. My fiancée passed away and I was named as a beneficiary of a valuable piece of real estate in Hudson County, New Jersey under his Will. Adding to my grief was the decision of the Executor to ignore the language of his Will and then he refused to convey ownership of the real estate to me.
What were my rights? What could I do? I called various people for a referral to an attorney experienced in probate litigation. Mr. Niemann was recommended to me and immediately he took charge. He filed a lawsuit against the Executor and aggressively fought for me throughout the legal process. He would not compromise or settle for less than I deserved under the Will. A trial took place and Mr. Niemann tried the case for me to the end. He was prepared and his office and associates offered tremendous assistance to me and Mr. Niemann in getting the case ready for trial.
Today, I am the owner of the property my fiancee intended for me to have. I cannot say enough good things about my experience with Mr. Niemann and his very capable office.
—Noreika Sanderson, Weehauken, NJ and New York City, NY
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 decedent. A fiduciary duty consists of a duty of good faith and fair dealing, and a duty of diligent service to the estate. A fiduciary must always consider the best interests of the trust or estate before his or her interests. When an executor or trustee wrongfully profits from his or her position, they have breached their fiduciary duty. A failure to safeguard trust or estate assets that causes a loss of economic value to the heirs and beneficiaries is 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 of the estate’s hands. 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 executors and trustees 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 what a parent verbally promises their child upon their death is not found in a will. When a promise isn’t fulfilled, 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 gift of property after death must be in writing. If it is not in writing, such agreements are often unenforceable, but not always. 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 upon the promise and suffered economic 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 this would apply:[box]Mom promises to one of her daughters that if she moves in and cares for her at home for the rest of her life, then that daughter would inherit the home. The daughter agrees. She gives up her job, sells her home and takes care of her mom around the clock for two years, giving up opportunities for employment and a social life. But after Mom’s death, the daughter discovers that her mother’s will divides the entire estate, including the home between all six children. In this case, the daughter may have a valid claim against her mother’s estate for a breach of contract.[/box]
CONTACT US TODAY
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or email him at firstname.lastname@example.org to set up a consultation at your convenience. He is easy to talk to, very approachable and will explain your options in plain, simple English.