Ideally, while we have the ability to do so, making a will, appointing an executor, and communicating plans with loved ones ends up being helpful in more ways then we even imagine. Unfortunately, sometimes situations arise that raise red flags about the validity of a will. Lawyers share these cautions.
Naturally, it can be eyebrow raising when a new will suddenly pops up, invalidating an earlier version, especially when family members or friends previously involved in discussion of the estate plan have been excluded from communication. It’s especially suspicious making when the new version benefits individuals who have recently become unusually close to the testator (will-maker), and have taken a strong hand in financial and health decisions. As Paul Norris, an attorney with Stark&Stark explains, these are the kinds of circumstances that can call the validity of a will into question:
When a person has inserted themselves into the life of the decedent, and it appears that they have assumed control of the decedent’s life, it is typically evidence that there now exists a confidential relationship. Should such a confidential relationship exist, and thereafter, a new Will is drafted which benefits this individual a presumption that the Will is invalid could arise. Therefore, whenever there is a person who may have a power of attorney, or when an individual seems to have an overmastering control over a decedent, any newly drafted Will should be carefully reviewed for validity.
A Will might also be challenged if it was executed at the time the decedent’s mental capacity was highly questionable either due to a degenerative condition, or an intervening event that lead to the mental incapacity. In order to properly execute a Will, a decedent must have the legal mental capacity to do so. In general, this means that the person must understand the assets that they have, and furthermore, they must understand to whom they wish to bequeath their assets.
Executors and Executor Bonds
Among the important decisions made when a will is created, is the designation of a family member, friend, or professional to administer the estate on behalf of the testator. Generally, this representative is referred to as an executor. An executor has a fiduciary responsibility to act in the best interest of the estate and beneficiaries.That’s why executor bonds have long served as a protection for everyone involved. Sometimes these bonds are specifically requested during probate. Essentially, an executor bond guarantees the faithful performance of the executor in accordance with the law. Colonial Surety Company makes it quick and easy to get an executor bond: get a quote online, fill in the information and enter a payment method. The bond can then be e-filed or printed from anywhere—even your lawyer’s office or zoom room.
Lawyers encourage as much specificity as possible when making a will. Though well-intended, reliance on “the kids” to work things out “later” naturally adds to stress during grief, and can lead to conflict—and even probate litigation. It’s essential to be proactive: putting off plans until we are in decline (or the unexpected happens) leaves the resolution of our affairs to chance. As an estate law expert cautions: “When a Will is drafted near the end of a person’s life, a strong consideration should be whether this individual possessed sufficient mental capacity to execute the document. Further, when a person is in the process of dying, or is suffering from other mental disorders, they may be particularly susceptible to the improper influence of other people which cause them to change their estate plans. As such, whenever a Will is drafted within the last few months of a decedent’s life these issues should be carefully reviewed.”
Estate Planning Law Practice?
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Founded in 1930, Colonial Surety Company is a direct writer of surety bonds and insurance products. Colonial is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA.