The executor of a will is the person in charge of finalizing the deceased's estate (paying bills, etc.) and distributing the estate according to the will.
Is this a proper trust distribution? Watch and see how it happens and tune in to discuss how a trust is created and how it can give you peace of mind.
This legal guide video is the first in a series that shows why and how to get your legal affairs in order prior to passing.
Why Should a Lawyer Draft your Will? If drafting your Will online may seems “too good to be true” – the answer is… it is! The end result can be costly and detrimental to your estate planning goals. There is a reason that lawyers draft Wills. It is always best to seek legal advice before creating any legal document, including your last will and testament. Although there are many sites and software out there that can assist in drafting your will for a relatively low fee, these resources do not give you advice or counsel necessary to formulate an effective estate plan. None of the programs take into consideration real life scenarios, statutes and case law that can drastically affect your estate plan. Don’t be “pennywise and pound foolish.” What Does a Will Do? A last will and testament will direct where you want assets to go after you die. However, a will should go beyond the simple distribution of assets. Your will can protect your heirs as well. For example, if your will directs assets be payable to your children, you may want these distributions to be paid out to them in a trust. One reason to create a trust within your last will and testament is to give your children creditor protection while also ensuring that the assets are not included in their estate. This can protect them from future creditors, bankruptcy, divorcing spouses, or estate tax. If your beneficiary receiving government assistance, you will want to make sure his or her distribution is paid to a Supplemental Needs Trust in order to protect their inheritance and ensure that the beneficiary doesn’t lose their government benefits. Beyond the who and what of asset distribution, your last will and testament can also control other issues that arise after death. If you have minor children, you will want to name a Guardian for them, this can and should be done in the will. If you are married, you should have a full understanding of a spouse’s right to share in your estate under New York state law and how it relates to your estate plan. Other considerations include what the estate and income tax implications will be; the likelihood of an estate plan being contested; and if your will follows the statutory drafting requirements to constitute a valid will under New York law. What Other Estate Planning Options Do I Have? Furthermore, passing your assets through a last will and testament may not be the best plan for you. A trust may be the better option depending on your estate planning objectives, family structure, and asset structure. A trust maintains the same benefits as those found in a will, but it is a private document that does not go through the probate process and can provide asset protection during your lifetime. Conclusion For all of these reasons, it is best to seek professional advice prior to drafting any estate planning documents. An elder law and estate planning attorney can review your assets, as well as collect all information as it relates to your personal life, in order to determine the best plan for you and your beneficiaries to ensure your goals are met through the drafting of your estate planning documents.
Why some persons create Trusts in addition to Wills Probate is defined as the procedure by which an Executor proceeds to admit a Will to the jurisdiction of the Surrogate Court, which is proved to be valid or invalid. The term generally includes all matters relating to the administration of estates. New Jersey is a probate easy state. Very few persons in NJ really need a $4,000 Revocable or Irrevocable Trust for their estate. For most NJ citizen, a $500 Will is best for them. There are instances where Surrogate Court monitoring of the estate is desirable. Much has been written about the disadvantages of probate. Following are just a few of the problems associated with probate. Lack Of Privacy Documents filed with the Surrogate Court are public information. They are available for inspection to anyone who asks. In large estates, which require an accounting, your probate file will contain a complete list of all assets devised by your Will including business assets. This lack of privacy may lead to problems among family members who now know the plan of distribution and may then contest any provisions with which they disagree. Disinherited relatives and creditors are notified and given time by the Court to contest the Will distribution. Sometimes-Time Consuming The probate of an estate may take several months to several years to complete. During that time family members may have to apply to the Surrogate Court for an allowance. WHY SOME PEOPLE SPEND OVER $3,500 TO CREATE REVOCABLE LIVING TRUSTS Fragmentation - Real Estate If you own real property in more than one state, probate rules must be followed in each state in which real property is located. The cost and time may be increased. A Revocable Living Trust is a legal device that allows you to maintain complete control over your assets and AVOIDS PROBATE. Because there is no probate of a Living Trust, your private financial matters remain private; there are no probate costs, no long delays and loss of control, and no fragmentation of the estate. However, there is no Medicaid benefit or tax benefit with a revocable trust You Maintain Complete Control Over Your Property In Trust If Revocable The principle behind a Revocable Living Trust is simple. When you establish a Living Trust, you transfer all your property into the Trust, and then name yourself as trustee, or you can name you and your spouse as co-trustees of the Trust. The trustees maintain complete control over the property, the same control you had before your property was placed in trust You can buy, sell, borrow, pledge, or collateralize the trust property. You can even discontinue the Trust if you choose. That is why it is called a "Revocable" Living Trust. We will explain the "Irrevocable Trust" at the end of the article. Transferring Property Into The Trust Anywhere you have assets, you will need help in transferring your property into the Trust. Your attorney, securities investor, etc., will provide you with assistance needed to transfer your property into your Revocable Living Trust. Your attorney will need to prepare new deeds, affidavit of title and other legal documents to transfer ownership of real estate in NJ. Complete Privacy Probate records are public; your Next YouTube videos For DWI PCR on prior uncounseled DWI proceeding, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented State v. Patel https://www.youtube.com/watch?v=vNVTz5eSfQE 39:4-86 Failure to overtake and pass properly 4 points https://studio.youtube.com/video/l9Kk2g2zzEQ/edit 39:4-89 Tailgating Following vehicle too closely 5 points https://www.youtube.com/watch?v=kw5KdhxQddk&t=6s
First Steps You may want to start the process to contest the new Will signed by your mom shortly before she died. If your brother sends you a Wavier and Consent form to probate the new will, do not sign it. The first step in contesting the Will is to determine if you have a legal basis to contest the Will. The legal basis’ to contest are: your mom did not follow the proper procedure as required by the law when she sign the Will; your mom lacked capacity or did not understand what she was signing when she signed the Will; the Will contains a mistake; or the Will is the result of fraud, undue influence, duress, or an insane delusion. Once you determine which legal basis applies, you must file objections with the Surrogate’s Court stating your legal basis for contesting the Will. How to Gain More Information about the Will If you do not know all the facts surrounding the signing of the Will and do not know which legal basis your Will contest should be based on, you are given an opportunity to obtain more information before you formally file objections with the Court. Specifically, a person considering whether to file objections to a Will can obtain documents and testimony from the witnesses to the Will and the attorney that drafted the Will for your mom. This information obtained could be crucial in deciding whether to start a contest and decide if there is a basis upon which a Will can be invalidated. Conclusion Most of the time the Court does not invalidate a Will as there is a preference to ensure that the decedent's desires as expressed in their Will are fulfilled. Where there is proof that a Will is not valid, a person contesting a will can succeed. However, it is important to keep in mind that a Will contest can be a lengthy and costly affair and could create bitterness among family members. The guidance of an experienced estate administration is important when dealing with this kind of legal battle.
Removal of a Fiduciary However, many situations are not as straightforward as the grounds listed in SCPA § 719. While you may be working with a fiduciary that does not act in the manner that you wish, oftentimes, the conduct does not rise to the standard that would warrant their removal. Courts have held that the removal of a fiduciary pursuant to SCPA §719 is equivalent to a judicial nullification of the testator's choice and can only be done when the grounds set forth in the statutes have been clearly established. The Court may remove a fiduciary without a hearing only where the misconduct is established by undisputed facts or concessions, where the fiduciary's in-court conduct causes such facts to be within the court's knowledge or where facts warranting amendment of letters are presented to the court during a related evidentiary proceeding. Requirements for Removal Pursuant to SCPA § 711 a person interested may petition the court to remove the fiduciary. Some of the grounds listed in the statute include: that the fiduciary wasted or improvidently managed property; that the fiduciary willfully refused or without good cause neglected to obey any lawful direction of the court; or the fiduciary does not possess the necessary qualifications by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office. Again, while there are many cases where fiduciaries have behaved badly, courts are generally hesitant to remove fiduciaries unless the assets of the estate/trust are put at risk. Not Breaches are Created Equal Even though you may be unhappy with the conduct of a fiduciary, not every breach of duty will result in the removal of the fiduciary. Many breaches can be addressed in an accounting proceeding either through surcharge or denial of commissions. While a fiduciary can be removed if conduct that violates SCPA § 711 or § 719 can be proven, it is often a lengthy and expensive process that involves the exercise of discretion by a court that is hesitant to remove a fiduciary chosen by the testator. Removal Proceeding A proceeding to remove a fiduciary should only be undertaken if it can be proven that the assets of the estate/trust are in danger under the fiduciary’s control. Mere speculation or distrust will not be enough to remove a fiduciary. If you believe that the fiduciary of an estate or trust is not managing the estate or trust properly, you should consult with an attorney experienced in estate administration matters that can review the facts and determine the best course of action.
Executor of will duties involve wrapping up all the final affairs of an estate before distributing assets according to the will.
by attorney Matthew Erik Johnson
Read about how to choose an executor that will be reliable in handling your will.
Changing the executor of your estate is a simple process. Learn how to change the executor of a will in four easy steps, without creating a new will.
Intestacy laws differ in how to become an executor without a will, but most states usually require petitioning the appropriate probate court.