Frequently Asked Questions

Family Law/Family Law Mediation

Who decides my case?

In many cases YOU are the one who decides your own case because, if a settlement/agreement is reached, YOU decide whether it is acceptable. In cases that do not settle or if the parties are unable to reach an agreement, a Judge decides the case. There is no jury trial.

If I reach an agreement outside of court, do I still have to attend court?

There is now a procedure in family cases that, in certain instances, allows parties to sign documents in advance authorizing the Judge to enter an Order dissolving the marriage of the parties without anyone having to physically appear in court if a written agreement is reached on all issues and is approved by the Judge. A written agreement and other related documents must be electronically filed with the Court in advance of your final hearing date or trial date, along with other required final documents. Some of these documents need to be signed in front of witnesses and/or Notary Public.

Can the 90-day waiting period be waived?

Many clients inquire about the 90-day “cooling off” period preceding the entry of an Order dissolving a marriage and wonder whether it is possible to get divorced faster. There is now a procedure that enables parties to waive the period but appropriate forms must be prepared, signed, and submitted to the Court.

Will my children be required to testify?

Normally children do not testify. Judges do not encourage testimony from children, most attorneys seek to avoid embroiling a child in litigation, most parents do not want their children to testify, and the Judge often appoints a guardian ad litem for a child in the hope of avoiding the need for child testimony. However, a case that was decided in 2010 creates some uncertainty in this area.

Can I get reimbursement for my attorney fees and costs?

Generally, each person must pay his or her own attorney fees and costs. However, the Judge has the discretion to order reimbursement as part of the final judgment or agreement.

Do I need to hire a Marshal to serve my spouse/partner?

Typically, in a divorce, legal separation, or annulment, a complaint is formally served upon the non-filing spouse (Defendant) by a State Marshal. However, if there is cooperation on the part of the Defendant, it is now possible for the Defendant to waive the Marshal Service by filing an affidavit acknowledging receipt of the documents. If you are concerned about the process in general, the Marshal may take steps to avoid undue embarrassment to the person being served by calling in advance or otherwise making mutually convenient arrangements.

Estates/Probate

How long is the Probate process?

Depending on the complexity and awareness of the assets involved, a Decedent’s Estate usually takes about one year from the date of death to resolve.

How quickly does the original Will need to be delivered to the Probate Court?

Typically, within 30 days of the date of death.

What if I can’t find the original Will?

If you are unable to present the original Will to Probate Court, the Court presumes that NO Will existed at the time of death and that any prior Will was duly revoked. Although it is possible in certain cases to overcome that presumption, it is advisable that the ORIGINAL Will be preserved and maintained in a secure place, such as a safe deposit box, to prevent inadvertent loss or destruction or the intentional removal or destruction by a disgruntled heir after death.

Can I get access to a safe deposit box to search for an original Will?

If you know the location of the bank, you can ask permission from the Probate Court for access to a safe deposit box. There is a charge imposed by the bank to open the safe deposit box if the key cannot be located.

What are the major steps in administering an Estate?

Submitting the original Will (if one exists) to the Probate Court; filing for Appointment of an Administrator or Executor; locating and taking possession of all assets of the decedent on behalf of his/her Estate; filing an Inventory; filing an estate tax return; filing of a Return of Claims and paying the bills of valid creditors that file a claim against the Estate; filing a Financial Report or Final Accounting; distributing assets to heirs/beneficiaries; and filing Affidavit of Closing.

If I pay for the funeral and other expenses on behalf of the decedent, can I get reimbursed?

Funeral Expenses are considered a priority expense. If there is enough money in the estate, you should be able to get reimbursed for necessary expenses paid on behalf of the decedent out of funds advanced by you.

What is the difference between an Administrator and an Executor?

An Administrator is appointed by the Probate Court if no Will exists. An Executor is chosen by the decedent and named in the Will.

Estate Planning – Last Will & Testament and Related Documents

Do I need to make a Last Will & Testament?

A Last Will & Testament is a document that ensures that your desired wishes will be carried out in the manner that distributes your assets to the loved ones you choose in the amounts or percentages that you determine. In the absence of a Will, your estate will be distributed in accordance with the laws of intestate succession (presumed intent of persons who die without a Will). In many cases, that distribution will be different from what you intended and can cause unforeseen turmoil among family members.

You should definitely consider making a Last Will & Testament if you are contemplating or intending to disinherit an heir. If no Will exists, an heir-at-law may be entitled to a portion of your assets which is determined by the intestacy laws. You should also consider making a Will if you have never been married, have no children, and your immediate family (i.e. parents and siblings) are no longer alive. There are many other instances in which a Will is advisable. Among other things, it is preferable for you to be able to name the person who will administer your Estate. Otherwise, the Probate Court will make an appointment, which may or may not be a person that you would prefer.

What if one of my beneficiaries/heirs passes away?

A well-drafted Will includes alternative provisions for what will happen if a beneficiary predeceases you. If your Will does not specifically state what happens to an heir/beneficiary’s share of your estate upon his/her death, you should amend your Will.

What documents/information are needed that would be helpful in preparing estate planning documents?

Most recent tax return, knowledge and location of all assets, current legal names and addresses of desired beneficiaries, heirs and person(s) you would like to handle your affairs (i.e. Conservator, Health Care Agent, Power of Attorney, Executor/Executrix, etc.)

Where should I store my original Estate Planning Documents?

You can store them in a safe deposit box at a bank, fireproof lockbox, or safe in your home or give them to a close family member that you trust to store them for you. You should always let your spouse/partner, executor, or a close family member know where you have stored the original documents. You may also want to advise your attorney of the location of the original documents so he/she may note your file. Many times, relatives will call the attorney who prepared the Last Will & Testament to ask the whereabouts of the original Will if they cannot find it. Some clients choose to have their Attorney retain possession of their original documents.