Contesting a Last Will and Testament

Suppose you have a loved one who has passed, and all of a sudden there is a brand-new last will and testament that either greatly reduces your share or leaves you out completely. What do you do?

A Common Scenario for Contesting a Last Will and Testament

Here’s an example of a common situation. As an only child, Katie enjoyed a great family life with her loving parents. Sadly, Katie’s mother was diagnosed with a terminal illness and passed away. Years went by, and Katie’s dad got remarried. By this time, Katie was a young adult, living on her own. She didn’t really get to know her new stepmother and younger stepsister, who moved in with her dad. A year later, Katie’s father was in a serious car accident. He eventually slipped into a coma and died.

Katie had assumed that she would inherit most of her father’s estate. However, she was shocked to discover that a new last will and testament left her with only 25%, and the rest to her stepfamily. Katie suspected that her stepmother had forged her dad’s signature on the new will while her dad was in the hospital. Katie was not going to let her stepmother “rob” her of her rightful inheritance. So, Katie decided to take legal action and contest the last will and testament.

How You Get Notified of a Last Will and Testament

When someone dies, the original will is “probated” and submitted to the Register of Wills office in the county where the decedent resided. When the original will is probated, both the new beneficiaries and all of the “intestate heirs” will receive notice of the new last will and testament.

Intestate heirs typically include the surviving spouse and the decedent’s children. If you are an intestate heir you will be notified of the opening of the estate. If you are not an intestate heir (i.e. more remote relative, stepchild, etc.), you may not receive notice that the Register of Wills is probating this new will.

Contesting a Will Now or Never

It is incumbent for you to challenge the last will and testament in a timely fashion. Otherwise, your right to contest the last will and testament will be waived (a most unfortunate circumstance). This means that if you do not file action to challenge the new will in a timely fashion—even if you did have the best case to overturn the last will and testament—then you will have forever lost the right to challenge the will.

Four Ways to Contest a Last Will and Testament

Once you are at the point where you believe the last will and testament is invalid (for example, the decedent was not competent to sign the document or there is no way he/she would sign this document), you need to understand that there are four basic methods to invalidate the last will and testament. Each of these are independent rights to challenge the last will and testament.

  1. The signature is fraudulent.
    If the signature is a fraud, then typically we would need a handwriting expert to analyze the signature, along with a good number of signatures that we know are valid.
  2. The last will and testament was not executed properly.
    For a last will and testament to be executed properly, the signature must be witnessed, and there must be two witnesses to this signature. Common issues are that the witnesses were not present when the signature was made or that someone else signed on the decedent’s behalf. Execution issues are common when the last will and testament was obtained online.
  3. The decedent was incompetent at the time it was signed.
  4. The decedent was subject to undue influence at the time it was signed.

If the decedent was incompetent or subject to undue influence, the path to invalidate the last will and testament is more complex. It’s important to have eyewitness observations of the decedent (i.e. the decedent did not drive, could not dress himself, often repeated sentences, forgot what was talked about 10 minutes later, made bizarre accusations of people stealing items, no longer cared about paying bills, etc.). Ultimately, however, we will need to obtain the medical records of the decedent.

In order to get the medical records of the decedent, a challenge to the last will and testament needs to occur. Once this process begins, a subpoena may be issued to the hospital, nursing home, assisted living facility, or physician’s office at issue. It is certainly important to know which place is at issue.

Once we get eyewitness testimony and receive the medical records, we have an expert review all of this information. The expert will verify if the information is sufficient to determine if the decedent was incompetent or subject to undue influence. Undue influence is a seven-factor test, with the most important factor being if the decedent was in a weakened physical or mental state. It is important to note that incompetency is a higher standard to meet than undue influence.

Even with the expert opinion, we need to convince the court that this evidence rises to the standard of incompetency or undue influence.

Attorneys Help Protect Your Loved One’s Intentions

Unfortunately, it is not uncommon for someone who is in a weakened condition to be preyed upon by others who seek financial advantage. It is up to you to fight back to protect your loved one’s true intentions. We’re here to help you.

Contesting a Will and a Beneficiary Designation Change

When you consider contesting a last will and testament, you might also have to consider contesting changes to certain additional assets—for example, an account that has had a change in beneficiary designation or a change to joint account status.

A Common Scenario for Contesting a Last Will and Testament and Beneficiary Change

Let’s go back to the example of Katie’s situation. Katie discovered that the beneficiary designation of her father’s savings account had been changed. The beneficiary was no longer Katie—it was now her stepmother. Katie was afraid that her stepmother would start spending all the money in her father’s savings account. So, Katie needed to take legal action immediately to contest both the last will and the saving account’s beneficiary designation change.

Probate Assets vs. Non-Probate Assets

Challenging a last will and testament only impacts those assets that are “probate assets.” Probate assets need a court-supervised probate process in order to get passed on to the beneficiary. Non-probate assets can be given directly to the beneficiary without a court process.

An account is likely to be considered a “non-probate asset” if:

  • The account has a changed beneficiary designation or
  • Right before the decedent’s death the account was changed to a joint account

If there are problems with non-probate assets, then challenging the last will and testament is not your only concern. You will also need the Circuit Court to determine if the change in beneficiary designation or the creation of the new joint account is valid.

Four Ways to Contest a Last Will and Testament and Beneficiary Change

The four ways to contest a last will and testament also apply to beneficiary changes:

  1. The signature is fraudulent.
  2. The document was not executed properly.
  3. The decedent was incompetent at the time it was signed.
  4. The decedent was subject to undue influence when the document was signed.

Did a financial power of attorney change the beneficiary?

It is common for a financial power of attorney to change a beneficiary designation. It is important to know if that is the case in your situation. If so, then the issue becomes whether or not the financial power of authority had the authority to make the change. Sometimes the financial power of attorney signs documents when their power of attorney is invalid. Or sometimes the power of attorney exceeds their authority, which would invalidate their change in beneficiary designation.

Contest the Beneficiary Change Before It’s Too Late

If you’re going to contest a change in beneficiary designation or the creation of a new joint account, then you need to consider the timing. While there is the normal statute of limitations to file for Circuit Court relief, a would-be beneficiary could have access to the account as soon as they acquire the death certificate. Then, nothing would prevent them from spending the account’s money.

If you wait too long to file an action in the Circuit Court, then you could face this situation: you win the case, only to see that the money has already been spent. Then you have to engage in collection efforts against the wrongdoer.

The better course would be to immediately file suit to put the wrongdoer on notice. It would also make sense to ask for “injunctive relief” to freeze the account. However, this often requires immediate action after the decedent passes.

Lawyers Help to Contest a Will and Beneficiary Change

Challenging a beneficiary change or a change of an account to joint ownership status can be a complex area of the law. These challenges should only be considered by one versed in this area of law. It is important to know what to expect.

For some families, it is unclear in the beginning if they have a rock-solid case, but they have strong suspicions that wrongdoing occurred. In those cases, it is not unusual to engage in litigation to obtain the needed bank account information (i.e. signature pages) and medical records in order to formulate an opinion after this information is obtained.

Often, it is only through litigation that you will be able to access the information that is critical to winning your case. It is not uncommon to see beneficiary designations changed once a decedent was in a weakened condition. Let us fight with you to correct this wrongdoing.

An Advance Directive for Nursing Home Negligence Cases

Having a properly executed advance directive is absolutely critical in nursing home negligence cases.

What is an advance directive?
An advance directive is a legal document that allows you to explain your decisions about medical care. If you are unable to make decisions or communicate in the future, this makes it easier for your loved ones and health care providers to understand your wishes.

What is the difference between an advance directive and guardianship?
Both of these legal tools help others make decisions regarding your medical care if you are unable to make them. However, an advance directive is appointed by you while you are still fully capable. Guardianship, on the other hand, is appointed by the court, after you have already become incapable of making decisions.

Please know that the medical facility has a right to charge you for accessing the medical records.

Why is it important to have an advance directive in a case of nursing home neglect?
In a nursing home negligence case, you need medical records to show the harm that the negligence caused. You have a right to the medical records; but you need legal authority in order to access them. The advance directive gives you this legal authority.

How do I get a properly executed advance directive?
The term “advance directive” is often used synonymously with the term “living will” or “durable power of attorney for health care.” In Maryland, the advance directive normally contains both the health care agent powers and the living will (i.e. end of life decisions). However, it is also not unusual for there to be a separate durable power of attorney for health care and a living will.

To make things more confusing, sometimes the financial power of attorney will have health care agent rights in it as well. There are strict requirements regarding execution of an advance directive in Maryland. It’s important to know the specific requirements of these legal documents. It is also important to know if the documents you already have will be sufficient to get the necessary legal documents.

Our Attorneys Help with Advance Directives
If you don’t have an advance directive, we can help. As elder law specialists in Maryland, we can navigate your family through whatever crisis you might be experiencing. If you think your family member isn’t being treated well at the nursing home, then let’s sit down and talk about it. Give us a call at (410) 296-8166 x292.

Documenting Nursing Home Neglect

Nursing Home Neglect

At some nursing homes and assisted living facilities, the staff and aides are underpaid, untrained, and overworked. In these situations, there is usually a high turnover rate. Therefore, mistakes might often be repeated and not corrected. The mistakes only come to light when disaster strikes, and a family member is willing to fight back.

Nursing home neglect occurs when the facility fails to properly care for their residents. Neglect can be caused by inaction (such as not assisting a resident who is at risk of falling), or it can be caused by improper action (such as physical abuse). Nursing home negligence can lead to serious medical problems, such as needless falls or bed sores.

If You Suspect Nursing Home Negligence

Suppose your mother has a fall at her nursing home. You suspect it’s the nursing home’s fault. She’s currently recovering, so you don’t know the full extent of the harm yet. What should you do?

You might not be ready to take legal action yet. But here’s what you need to do: document the incident.

Document Nursing Home Neglect Now

If you observe potential negligent behavior, or if any incidents occur, it’s best to document them as they are happening. If you need to take legal action, even if it’s one or two years later, then you will already have these important details recorded. Keep a journal of diligent notes specifically for this purpose.

Document Everything for Your Attorney

Make sure you record:

  • Dates
  • Time of day
  • Names and positions of facility staff who are involved
  • Names of witnesses
  • What happened (negligent behavior could be action or inaction)
  • Any harm that may have ensued

You could also take pictures, if appropriate.

An Example Journal Entry

For example, you could write down:

On September 8, 2019, Mrs. Hannah Jones, an aide at the Happy Days nursing home, told me that my mother had a fall. On that day, around 3:00 pm, my mother wanted to take a walk. Mrs. Jones said she assisted her during the 20-minute walk and then took her back to her room to rest.

About 10 minutes later, my mother apparently tried to leave the room on her own but was too weak and fell. She broke her wrist and was treated at Clarksville County Hospital by Dr. Robert Lam. It was unclear why my mother tried to leave the room without an aide. I talked with my mother’s next-door roommate, Mrs. Kathy Albertson. Mrs. Albertson said she heard my mother calling for an aide a few minutes before her fall, but no aides appeared until after her fall.

Win the Nursing Home Negligence Case

Why should you take the effort to document everything now?

If a judge gets involved, the documentation:

  • Helps establish your case and key witnesses (especially if the facility staff involved with the incident is no longer employed there)
  • Makes it easier for the elder law attorney to help you win
  • Relieves you from the pressure of trying to remember all the pertinent details

Having proper documentation can make the difference between winning and losing a case when legal action is required.

Asset Protection from Nursing Home Costs

Two Important Assets to Protect

When your family member is in a nursing home, it’s important to protect their assets, especially these two:

  1. House
    The house is often the focus of asset protection. It’s typically the most substantial asset of an estate. You might be wondering, “Will my family member lose the house?” Usually you don’t have to sell the house in order to be eligible for Medicaid. However, after the Medicaid recipient passes away, the state will file a claim to help recoup their nursing home expenses. This is known as estate recovery. There are ways to protect the house from estate recovery. For example, if a spouse or dependent relative lives in the house, then the state won’t be able to file a claim against the property, regardless of its equity limit.
  2. Life insurance
    Life insurance can be a sneaky asset. Most people don’t think about it. However, you could be disqualified from Medicaid, simply by having a life insurance policy that’s of a certain type or cash value. And it can take 3-4 months for Medicaid to give you an answer regarding eligibility. During that waiting time period, your $10,000 nursing home bill could inflate to $40,000.
Typical Asset Allocation

Although asset allocation varies widely based on the family, this is a typical allocation for Maryland residents.

Get Help Protecting Assets in Maryland

Even if you’ve already accrued a $40,000 nursing home bill that you can’t afford, it’s not too late to get help. As an elder law attorney firm in Maryland, we’re here for you and your family.

We’ll help you understand the best ways to protect the house from estate recovery. And we’ll discuss how to prevent a life insurance policy from hindering Medicaid eligibility.

We’re just a phone call away. 410-296-8166 x292

Asset Protection from Nursing Home Costs

Protect Your Assets from Nursing Home Costs

It’s scary how expensive nursing homes can be.

And it’s even scarier when you have more than one elderly family member to consider.

You just got the first nursing home bill. Yikes! Now what?
The average cost of a nursing home in Maryland is about $10,000 a month, according to Genworth’s Cost of Care Survey 2019. After you receive the first nursing home bill, you might worry how your family will ever be able to afford this kind of ongoing care—especially if the Medicaid application is denied.

Monthly Nursing Home Costs in Maryland

Assuming an annual 3% inflation rate, the median cost of a private room in a Maryland nursing home will rise to $13,500 per month in the next ten years, according to Genworth.

No need to panic. It’s not too late to protect your assets.
The good news is that it’s never too late to plan. Our expertise is in protecting your family’s assets—even after your loved one has entered the nursing home. And even when you don’t know what the assets are.

Hire Medicaid experts.
Medicaid can make long-term care more affordable. However, Medicaid eligibility rules change constantly and are difficult to understand. A mistake could cost you tens of thousands of dollars, or more. That’s why you need an elder law attorney who specializes in Medicaid and nursing home asset protection. Don’t settle for an attorney who merely dabbles in it.

Get the nursing home contract reviewed first.
The nursing home might pressure you into signing the contract to let your parent into the facility. However, we strongly advise you to minimize your risks and have an elder law attorney review the contract first. If the Medicaid application is denied, the nursing home will want immediate payment. They’ll seek out whoever signed the contract.

Create an asset protection strategy.
There are many ways to protect assets. During an initial consultation, we strategize with you and come up with a written plan. We want to give you time to consider our recommendations, so you won’t need to make any decisions on that day.

Give us a call.
Trust us to help protect you from:

  • Needing to sell your parents’ assets to pay for their nursing home care
  • Being liable for all the nursing home bills yourself
  • Having your loved one become involuntarily discharged from the nursing home

If you’re feeling burdened by hefty nursing home expenses or overwhelmed with confusing Medicaid issues, then let us ease your mind. Call us at 410-296-8166 x292.

Filing a Petition for Adult Guardianship in Maryland

One of the first steps in the Maryland adult guardianship process is filing a petition with a circuit court. If you’re preparing to file a petition for guardianship, you might have some questions.

Am I eligible to petition for guardianship?

According to the law, you must be an interested person to petition for guardianship. An interested person may include:

  • Someone nominated by the disabled person when they had sufficient mental capacity
  • The disabled person’s immediate family members (spouse, parents, adult siblings, children or other lawful heirs)
  • Health care agent or other government agencies

Where do I file the petition?

You need to file the petition with the circuit court in the county (or Baltimore City) where the disabled person lives (or, in some cases, where the person is hospitalized or where their property is located). The court will ask you to pay a filing fee.

Are guardianships of person and property filed in the same petition?

Usually they are, but they do not have to be.

What documentation do I need to file the petition?

Your petition must prove that the disabled person is unable to make responsible decisions and needs a guardian of the person or property. The petition’s content includes:

  • A description of the disability
  • The disability’s effect on the person’s ability to function
  • The reason a guardian should be appointed
  • Alternatives to guardianship that have been attempted and failed
  • Information regarding previously appointed guardians
  • A list of the disabled person’s assets
  • The disabled person’s attorney or a request for a court appointed attorney
  • Two certificates of disability from licensed health care professionals who have examined the person

File a Guardianship Petition with Less Stress

A petition that is incorrect or incomplete might cause your case to be delayed or dismissed. If you have questions regarding how to file a petition, then give us a call. Whether or not you have a lawyer, the court will require you to follow the same laws. We can advise you how to prepare a sound petition and how to navigate the various legal requirements of adult guardianship.

Maryland Adult Guardianship Process

If someone’s health condition prevents them from making decisions regarding their medical care and finances, they may need a court appointed adult guardian.

How to Become an Adult Guardian in Maryland

We routinely provide advice regarding the guardianship rules and processes. Here is an overview on how to become an adult guardian in Maryland.

Decide on guardianship type
As a petitioner, you need to determine if you are seeking to become guardian of the person, guardian of the property, or both.

File a petition
The petition needs to include two certificates that prove the alleged disabled person lacks the ability to make rational decisions regarding health or finances.

Appoint the attorney
If the disabled person doesn’t already have representation, then the court will appoint an attorney to act as their advocate.

Inform all interested persons
There is a deadline (usually 20 days) for all interested persons (including immediate family members) to voice any opposition regarding the initial petition.

Settle a contested guardianship
This step occurs only if there is any opposition or issues regarding who should be appointed as guardian.

Appoint the guardian
In a contested guardianship, the court will rank the contestants by legal standards and determine the guardian. If there is no opposition, the guardianship is considered uncontested.

Attend training
The guardian must attend mandatory training to learn their roles, duties, and responsibilities. Some courts offer classes, and some courts allow you to take the training online.

File an inventory
The guardian must file an inventory, detailing all of the disabled person’s assets.

Submit annual reports
On the anniversary of the date the court assumed jurisdiction over the person, the guardian must submit a yearly report. The court reviews the report and either accepts it and continues the guardianship or takes other appropriate action.

A Maryland Guardianship Attorney Can Help

We can guide you through the whole process of becoming an adult guardian, including filing the petition, representing you through the court hearings, and preparing the inventory of assets. The process to arrange an adult guardian can be complicated, but we are here to help.

Photocopy of Last Will and Testament

Last Will and Testament

What happens if I can’t find my dad’s original last will and testament?  Can I use a photocopy of his last will and testament?

There are problems in using a copy of a last will and testament.  Prior to about ten years ago, the answer was you could not submit a photocopy of one’s last will and testament.  But, tht changed in 2009.   Maryland Code Ann. Est. & Trust Sec. 5-802 allows one to submit a photocopy of the decedent’s last will and testament under certain circumstances.

What are the circumstances to submit a photocopy of the last will and testament?

The decedent heirs and legatees must provide their written consent that they accept the photocopy to be admitted to probate in lieu of the original.  It is important to note that “heirs” and “legatees” may be different people.  Heirs are individuals that would inherit if there was no last will and testament.  Legatees, on the other hand, are those individuals that are specifically named as beneficiaries in the last will and testament.

Here is an example of the problem in getting all to consent

Assume that dad’s original last will and testament could not be found.  In the photocopy of this last will and testament, he leaves everything to his two daughters who care for him in the last five years of his life.  His son, however, was left out of the last will and testament.  In this example, assuming mom has passed, the two daughters and son are the intestate “heirs” while the two daughters are the named beneficaireis – i.e. legatees. If the two daughters want to submit the photocopy of the last will and testament, they will need to obtain the signature of their brother.  But, of course in this example, thier brother may not want to sign the consent because if he does, he inherits nothing in the new last will and testamant.


Maryland Probate: You Can Do Post-Death Planning

Maryland Probate: after-death planning: last will and testament

Sometimes a proposed beneficiary distribution needs to be corrected after the death of a loved one.

Example 1: Grandchildren Born After the Will Was Signed

One common circumstance is when a grandparent’s last will and testament clearly indicates that all of her grandchildren will inherit an equal share. She names all of the grandchildren who are alive at that time. But what happens if the last will and testament is not updated to include grandchildren born after the will was signed? This would involve post-death planning.

Example 2: Estranged Beneficiary

Another example is when a beneficiary is estranged from the decedent and does not want to accept their distributive share. This would also involve post-death planning to perfect this particular beneficiary’s intention.

Addressing Post-Death Planning Concern

The post-death planning process is a tricky process. It often involves the cooperation of many, or all, beneficiaries of the estate and must be approved by the court. During our initial consultation, we help identify post-death planning concerns and create a plan to address those concerns.