A tool in any New York estate attorney’s arsenal when it comes to estate planning is the inter vivos transfer. With these transfers, a person planning what will happen to their estate can make sure that property goes to his or her beneficiaries without going through the Surrogate’s Court, hope to avoid creditors or possibly plan for future nursing home stays using Medicaid. This can be very useful for someone planning their estate and their beneficiaries.
However, transfers made before death can also be subject to some of the most contentious litigation when it comes to estates. This can especially be the case in matters where it looks like property was transferred because things such as fraud or duress or where it looks like someone who held a power of attorney may have abused that power. It is unfortunately common that not all gifts are transferred all so innocently.
In order to challenge and inter vivos transfer of property, we usually ask for an accounting by the executor of the estate that includes both the property that existed in the estate before death and also the property that was transferred to others in the weeks, months and years before death.
In addition to asking for an accounting, you must understand the issues that arise around the statute of limitations when it comes to these transfers. While it is possible to sue, there is a limited time to do so, usually just a few years from the transfer or, in the case of the wrongful use of a power of attorney, six years from the end of that power of attorney. While this does put limitations on the types of gifts that you can contest, the statute of limitations still does allow for a rather long period of time to challenge a wrongful gift. Failure to sue during this time could result in you missing out on your rights to even file suit if you feel your loved one’s property was improperly transferred.
You must keep in mind that challenging such transfers is not something that should be taken care of without representation. Proving either incapacity, abuse of a power of attorney or fraud or duress when it comes to transfers of property can be incredibly difficult. Hiring a New York estate attorney to assist you every step of the way in such a matter is necessary to be sure that you have a chance to reverse such a transfer and get access to the property that you believe you deserve. This can be even further complicated if you need to contest the will as well, as there is a much stricter time period involved when it comes to challenging a gift in a Will than there is for challenging a transfer of property before death. Call the Law Offices of Albert Goodwin at (212) 233-1233, New York estate, guardianship, wills, trust, Medicaid and probate lawyer, and make an appointment to discuss.