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Queens Probate Litigation Lawyer

Probate is the legal process of administering a decedent's estate, including distributing the estate's assets. In its most basic form, probate involves the executor of the estate winding up the decedent's affairs by paying the estate's debts and distributing its assets according to the terms of the will. Sadly, probate is not always a smooth process. During probate, emotionally charged disputes sometimes arise among family members that are difficult to resolve. The result is probate litigation. Whether you are the executor of an estate or a beneficiary, it is important to understand your legal rights during the probate process. To help you understand the technical and complex rules related to probate and to ensure that you are properly represented in the event of a dispute that results in probate litigation, it is wise to contact an experienced Queens Probate Litigation Lawyer.

Before a will can be admitted to probate, someone, usually the person who is named the executor in the will, must petition the New York Surrogate's Court to do so. The Surrogate's Court judge will then review the will to ensure that it was executed according to the requirements of New York law. NY EPTL § 3-2.1. For example, the judge will confirm that the testator was at least 18 years old when he or she signed the will. The judge will also confirm that the will was signed at the end by the testator and witnessed by two people who also signed the will. If the judge determines that the will is valid and was properly executed, the judge will issue an order allowing it to be admitted to probate. Such an order also formally appoints the executor, giving him or her legal authority to act on behalf of the estate. The executor can then begin to manage the estate by inventorying its assets, paying its bills, and ultimately distributing its assets to the beneficiaries.

From the time that the executor petitions the Surrogate's Court to admit the will to probate until all assets are distributed and beyond, there is the possibility for probate litigation. The executor's petitioning of the court to admit a will to probate triggers the court to notify beneficiaries. Such notification may in turn trigger beneficiaries to challenge the will and initiate a will contest. Prior to the Surrogate's Court judge admitting a will to probate, typical grounds for probate litigation focus on the formalities of executing the will. Beneficiaries may claim that the testator's signature was forged, that the witnesses were not qualified, that the testator was mentally incompetent or subjected to undue influence, or that the signing of the will was not properly witnessed. After the will is admitted to probate, probate litigation may center on activities of the executor including how the executor has managed the assets of the estate, or how he or she has handled claims against the estate.

Improper Execution

A will contest can be based on an allegation that the will was not properly executed. Before the court admits a will to probate, it will review the will and the circumstances surrounding its execution to determine that the will is genuine and that it was executed according to New York law. The testator must sign the will at its end. NY EPTL § 3-2.1(a). The testator must sign it in the presence of at least 2 witnesses, or the testator must acknowledge his or her signature to each of the attesting witnesses. In addition, at some time during the execution ceremony the testator must declare that the document signed is indeed his or her will. NY EPTL § 3-2.1(a). 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, the court will not admit the will to probate.

In In the Matter of the Estate of Helen Werner, 960 N.Y.S.2d 53 (2011), the testator's brother, objected to the will claiming among other things that it was executed by mistake. To determine whether the testator intended to execute the will, the court reviewed the circumstances surrounding the execution of the will. The judge gave great weight to the testimony of the testator's attorney that the testator intended to execute the will and that it was executed consistent with New York law.

The objector to Werner's will also alleged that her signature was a forgery. Proof a signature can be made by handwriting analysis performed by an expert. But the court will look at other evidence as well. In Werner the handwriting analysis determined that the signature was probably not the testator's. However, the handwriting expert's opinion was not as persuasive as the testimony of two attorneys who witnessed signature, since there was no reason for the attorneys to perjure themselves.

Testamentary Capacity and Undue Influence

New York law also requires that the testator at the time of signing the will, must not have suffered from a mental incapacity. Thus, if an interested party feels that the deceased did indeed suffer from a mental incapacity, he or she may challenge the will. Similarly, a will may be challenged if at the signing of the will the testator was under duress.

Undue Influence. Undue influence occurs when the testator has testamentary capacity, but that capacity is subjected to and controlled by another individual who has manipulative, selfish intentions. Typically the person exerting undue influence does so in order to convince the testator to make him or her a beneficiary. Influencing a testator to leave a bequest is not the same as exerting undue influence. For example, if you simply asked 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. 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.

Undue influence can even take a the form of duress could involving physical or mental abuse or threats that compel the testator to execute a will that included terms that the testator may not have otherwise included, or may not have fully understood. The result of someone believing that the testator was under duress or was subjected to undue influence at the time the will was executed could also be a will contest.

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. NY EPTL § 4-1.1.

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 under 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. Or in cases where the testator suffered a head injury or a mental disorder such as schizophrenia.

Having a medical condition that may affect your memory or mental capacity does not mean that you cannot make a will. As long as you executed your will during a time of mental clarity, then you have had testamentary capacity. The test is that you had testamentary capacity at the time that the will was executed. It does not matter if you did matter what your mental state was at the time of your 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.

Fiduciary Litigation

Estate litigation can arise over a dispute over how fiduciaries have administered the estate. A fiduciary is an individual who has the authority to act in the best interests of another person. In the case of a will or a trust, fiduciaries include the executor or trustee. In addition, professionals hired to help perform services for the estate such as attorneys, accountants, business advisors and bankers are also fiduciaries. Guardians and conservators are also fiduciaries.

Common types of estate litigation that involves fiduciaries include:

  • Breach of fiduciary duties
  • Accounting irregularities
  • Removing a trustee
  • Disputes involving how to interpret the language of a will or trust
  • Beneficiary disagreements on how assets are distributed
  • Contested conservatorships or guardianships
  • Creditor claims
  • Elder abuse

Estate disputes sometimes occur between beneficiaries and the executor, trustee or other fiduciaries involved in the management of the estate. For example, beneficiaries of an estate may disagree with how the executor has been spending estate assets. Another source of disagreement may be over 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. 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.

Contact the Law Offices of Stephen Bilkis & Associates

Probate litigation does not only refer to litigation that resolves disputes related to wills. Probate litigation also refers to litigation that resolves other types of estate and family relationship disputes such as disagreements related to powers of attorney, trusts, living wills, joint bank accounts, guardianships, and conservatorships. The staff at Stephen Bilkis and 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 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

Client Reviews
Mr. Bilkis handled both my father and mother's estate issues through very difficult times he was compassionate kind and understanding. In fact the whole firm showed great empathy. Despite the emotional hard time we were having that quickly and efficiently handle all the matters that were necessary to get us the result we desired. Can't recommend them enough. B.B.
From the very first phone call to Stephen Bilkis' office, the staff was extremely polite and helpful in assisting me. Mr. Bilkis was honest and upfront with me from the beginning in what he projected the outcome of my case would be; in the end we got better results than either of us anticipated. He was very genuine and compassionate in understanding my situation and how this legal matter could effect not only myself but my family as well. I highly recommend this law firm and will most definitely continue using them for any future legal needs. Jarrett
Stephen has handled numerous estate matters, criminal matters and family court matters effectively and with a goal-oriented approach. He gets great results and is a results-oriented attorney. Dustin