and Your Family
Nassau County Estate Litigation
When someone dies, his (or her) affairs must be settled and his assets distributed to others. Jurisdiction over the legal process of the administration of a decedent’s estate is in the New York Surrogate’s Court. Estate administration, though routine, is often complicated. There are many opportunities for disputes to develop including will contests, lawsuits by creditors, fiduciary disputes, and various other types of claims filed against to the estate. Such disputes and claims that develop during the administration process are referred to as estate litigation. Estate litigation is not only frustrating for all involved, it can also be time-consuming and expensive. If you are a beneficiary, heir, fiduciary, or other interested party and are involved in a dispute related to an estate matter, contact an experienced Nassau County estate litigation lawyer at the Law Offices of Stephen Bilkis & Associates who will be able to help you navigate the difficult legal issues involved in the estate dispute and ensure that your interests are protected.Common types of estate litigation
There are many different types of disputes that may arise in connection with the administration of an estate. The will itself may be challenged in a will contest based questions as to whether it it is valid. During the administration process, there may be disputes related to how the executor, administrator, or other fiduciary has fulfilled his (or her) responsibilities. These types of disputes are called fiduciary litigation. Beneficiaries may fight among themselves. Disputes involving creditors or other claimants may also arise during administration.Will contests
A will contest is a type of estate litigation that is initiated when the named executor files the will with the New York Surrogate’s Court along with a petition for probate. During the hearing when the will is presented for probate, those with standing have the right to file an objection to probate. Estate litigation that involves challenging the validity of a will is commonly referred to as a will contest or will challenge. Those with standing to challenge a will include anyone who is beneficiaries named in the will that is challenged, beneficiaries to the prior will, if any, and the decedent’s legal heirs.
Improper execution. Under New York estate law, there are specific requirements related to how a will must be executed. If an objectant can prove that the execution rules were not followed, the Surrogate’s Court may have no choice but to declare that the will is not valid.
The will must be in writing and the testator must sign the will at the end. A will that is not signed at the end would raise red flags. As a Nassau County estate litigation lawyer, even if the Surrogate’s Court chooses not to invalidate the entire will, it would likely find any terms that come after the testator’s signature to be invalid. Thus, it is a good idea to sign the will at the end. New York Estates, Powers and Trusts Law § 3-2.1, it is acceptable for another person to sign the will for the testator as long as the testator directs the person to do, the person signs it in the presence of the testator, and the person also signs his (or her) own name and writes his address.
There must be two people who witness the testator sign the will. Ideally they would be present at the actual signing. However, if they are not there, it is acceptable for the testator to later acknowledge to the witnesses that he (or she) did indeed sign the will. The two witnesses must also sign the will and must include their addresses. Failure of the witnesses to include their addresses will not affect the validity of the will.
In addition, at some time during the execution ceremony the testator must declare that the document signed is indeed his or her will.
If the court is satisfied that that will is valid, the court will admit to probate. However, if someone challenges the execution of the will and provides sufficient evidence, the court will not admit the will to probate. If you facing an issue related to an improperly executed will, contact a Nassau County estate litigation lawyer.
Undue Influence. Undue influence occurs when the testator makes a will or changes his (or her) will only because he was subjected to and controlled by another individual who had manipulative, selfish intentions. Typically the person exerting undue influence does so in order to convince the testator to make him (or her) a beneficiary. Undue influence is not easy to prove. Simply asking a testator to leave a bequest or someone taking steps to ingratiate himself to the testator is not the same as exerting undue influence. For example, simply asking to be included in a testator's will and the testator agreed, does not amount to undue influence. Undue influence includes elements of manipulation and force. If involves someone using his or her position or power over a vulnerable testator to manipulate him into making a will that he otherwise would not have made. For example, a friend who keeps away family members from a testator and also convinces that testator to leave him or her the entire estate, likely exerted undue influence of over that testator.
Typically those who object to a will based on undue influence will not have direct evidence. The court will look at the totality of the circumstances surrounding the will to determine whether or not illegal influence was involved. If the court concludes that there were improprieties surrounding the writing or execution of a will, the judge may declare that the will is invalid, or invalidate specific provisions of the will.
Testamentary capacity. One of the requirements for making a legally valid will is that you must have testamentary capacity. This means that you must be at least 18 years old and that you must be of "sound mind and memory." NY EPTL § 3-1.1. Being of sound mind and memory means that you have the mental capacity to appreciate what it means for you make a will. Generally the test for the mental requirement of testamentary capacity is that you have to understand the nature and extent of your property, understand the natural objects of your bounty, and understand how you want to dispose of your property.
Particularly with older people, testamentary capacity is sometimes the basis for challenging a will if the testator suffered from Alzheimer's or some other type of dementia at the time of his or her death. It has also been the bases for a will challenge in cases where the testator suffered a head injury or a mental disorder such as schizophrenia. However, the Surrogate’s Court has ruled that having a condition such as Alzheimer’s is not the same as not have testamentary capacity. As long as the testator executed his will during a time of mental clarity, then he would have had requisite testamentary capacity to make a will. It does not matter what the testator’s mental state was at the time of his death or at any other time.
Estate litigation has even been based on a claim of lack of testamentary capacity because of the testator's illiteracy, lack of formal education or lack of sophistication. However, sound mind and intelligence or education are not synonymous.
Duress. Another basis for a will contest is duress. Duress means that someone used physical force or some type of threat to force the testator to execute a will that included terms that the testator would not have otherwise included, or may not have fully understood. For example, in the case of In Matter of Rosasco, 2011 NY Slip Op 50673(U), Rosasco’s will was challenged on the basis of duress. The objectant produced testimony that the decedent feared the proponent of the new will who was also a beneficiary. The testimony was that Rosasco wanted to cut the proponent from her will, but was afraid to because of his history of violence and threats against the testator and other members of her family. Rosasco was afraid that if she disinherited the proponent he would retaliate by hurting her and other members of the family. On the basis of this evidence of duress, the judge agreed that the case should move forward toward a trial.Fiduciary litigation
A very common type of estate litigation is based on dispute with the fiduciaries involved with the estate including the executor, administrator, and trustees. Disputes can develop because one or more beneficiaries disagrees with some of the decisions the executor has made, the fees and expenses he (or she) wants to charge to the estate.
Common types of estate litigation involving fiduciaries include:
- Breach of fiduciary duties
- Accounting irregularities
- Removing a fiduciary
- Disputes involving how to interpret the language of a will or trust
- Beneficiary disagreements on how assets are distributed
In some cases estate litigation against a fiduciary or the estate develops because of disputes among beneficiaries or disagreement on how to interpret the terms of the will itself. Even though the testator's bequests are clear, beneficiaries may still disagree on how the assets of the estate should be distributed, believing that they should receive a particular asset or a greater percentage of the estate. There are often disputes where there are spouses and ex-spouses involved, or where there are children born after the will was executed. As an experienced estate litigation attorney in Nassau County will explain, regardless of the basis for the estate dispute, negotiating a resolution is an involved process, requiring a review of detailed evidence and applying the appropriate law.Creditor disputes
Another common basis of estate litigation are related to creditors claims. Disagreements commonly occur if the executor or administrator concludes that a creditor’s claim is untimely, inaccurate, or invalid. If a creditor files a claim—that is, asks for a certain amount of money that he claims that the decedent owed to him—and it is approved, that money will simply be paid out of the decedent’s assets to the extent that assets are available. However, if the claim is defined, creditor could initiate estate litigation.Contact the Law Offices of Stephen Bilkis & Associates.
Because of the complexities involved in estate litigation it is important to have an attorney who is experienced representing you. The estate litigation attorneys serving Nassau County at the Law Offices of Stephen Bilkis & Associates are experienced in estate litigation and have worked extensively in the New York Surrogate's Court. We will help you make the process as painless as possible under the circumstances. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Queens, Staten Island, Suffolk County, Westchester County, Bronx, Brooklyn, Long Island, Manhattan, and Nassau County.