Staten Island Estate Litigation Lawyer
In the emotional aftermath that follows the loss of a loved one disputes sometimes arise over how the decedent's estate will be settled. The disputes can range from squabbles for the disposition of minor, yet sentimental possessions, to attacks on the validity of the will. Disputes also occur between beneficiaries of a will and the will's executor as beneficiaries may not agree with how the executor is winding up the decedent's estate. Furthermore, estate litigation may occur because the estate has claims against others. Any dispute over an estate that cannot be quickly resolved may develop into estate litigation that the court must settle. If such litigation lingers, it will result in a delay in the estate being closed and assets being distributed. Moreover, estate litigation will cause a drain on the estate, leaving fewer assets to distribute to the beneficiaries. Whether you are a beneficiary, an heir, a fiduciary such as a executor or estate administrator, a creditor, or some other interested party, the best way to understand the complexities involved in resolving disputes related to an estate is to contact an experienced Staten Island Estate Litigation Lawyer who will be able to help you navigate the difficult legal issues involved in an estate dispute.
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Estate litigation may result from an interested party questioning whether or not a will was properly executed. In order to effectively execute a will New York requires that specific formalities occur. The will must be signed by the person making the will, known as the testator, in the presence of at least 2 witnesses. If the testator is physically unable to sign the will the law allows another person to sign it in the presence of the testator and at the direction of the testator. NY EPTL § 3-2.1. If an interested party believes that any of these requirements was not met, that person may have grounds for a will contest. One way to ensure that a will survives a challenge that it was not properly executed is to have the attorney who prepared the will be present to observe the will execution ceremony.
Another ground for a will contest is undue influence. Undue influence occurs when someone uses psychological or physical pressure to persuade the testator to make a particular bequest in a will that the testator would not have otherwise made. For example, in the case of In the Matter of the Estate of Alibrandi, 104 A.D.3d 1175 (2013) the court noted that a testator would be subject to undue influence if someone with a motive and opportunity acted in a way that resulted in the testator being constrained against his or her own free will and desire.
One of the requirements for making a legally valid will is that the testator must have testamentary capacity. Under New York law this means that you must be an adult-- at least 18 years old. It also means that you must be of "sound mind and memory." NY EPTL § 3-1.1. Being of sound mind and memory means that the testator cannot be suffer from a mental incapacity at the time he or she made the will. Generally the test for the mental requirement of testamentary capacity is whether the testator understands what it means to make a will, has a general idea of what his or her estate is comprised of and its value, and who his beneficiaries are. It is important to note that testamentary capacity is not related to a testator's education, intelligence or level of sophistication.What types of disputes relate to how the executor manages the estate?
Another common reason for estate litigation is where there is a dispute involving a person who is a fiduciary to the estate. A fiduciary is a person who has the authority and the obligation to act for another person under circumstances that require total trust, good faith, and honesty. With respect to an estate a fiduciary could be an executor, estate administrator, trustee, attorney accountant, guardian, conservator, or banker. If an interested party feels that a fiduciary has in some way breached his or her fiduciary duty, estate litigation could result. The most common type of estate litigation related to fiduciaries involves an allegation of a breah of fiduciary duty. If a fiduciary of an estate is found to have breached his or her fiduciary duty the probate court may hold that fiduciary personally liable and require the fiduciary to make the estate whole for any losses suffered or compensate the estate for any gain that the liable fiduciary received.
Another option for addressing problems with an executor or estate administrator is to seek to have him or her removed. Oftentimes an interested party and the estate administrator simply do not get along. However, hostility with an heir is not a reason that the Surrogate's Court will remove an estate administrator. In the case of In re Brody, 872 N.Y.S.2d 689 (Sur. Ct. Nassau County 2008), the court stated that unless the hostility interferes with the proper administration of the estate, it cannot, in itself, serve as a basis to remove an estate administrator.
There are specific reasons listed in the Surrogate's Court Procedure that an administrator may be removed:
- Ineligible. If after an executor or administrator has been formally appointed by the Surrogate's Court, information is discovered that shows that the administrator or executor is not eligible to serve in that the role, the Surrogate's Court judge may remove him or her. N.Y. SCP. Law § 711(1)
- Wasted Assets. If the executor or estate administrator is found to have wasted assets, misapplied assets, or made unauthorized investments, he or she may be removed. N.Y. SCP. Law § 711(2).
- Unfit to Serve. If the executor or administrator is found to be unfit for the job because of dishonesty, drunkenness, carelessness or want of understanding, he or she may be removed. N.Y. SCP. Law § 711(2)
- Disobedience. An executor or an estate administrator must follow the orders of the Surrogate's Court; otherwise, he or she make be removed. N.Y. SCP. Law § 711(3)
- Deceit. An executor or administrator may be removed if the court discovers that he or she received the appointment by lying. N.Y. SCP. Law § 711(2)
- Change of Address. An executor or administrator may lose his or her job if he or she failed to notify the court of a change of address within 30 days of such change. N.Y. SCP. Law § 711(6)
- Removal of Property. A fiduciary of an estate is not permitted to move estate property out of the State of New York without permission from the court. N.Y. SCP. Law § 711(7)
- Irresponsible. A fiduciary must not be irresponsible with the handling of his or her responsibilities due to substance abuse, dishonesty, carelessness, lack of understanding, or any other reason. N.Y. SCP. Law § 711(8)
- Failure to Account. A fiduciary must file an accounting as directed by the court. Failure to do so may result in him or her being removed. N.Y. SCP. Law § 711(12)
In order for a court to take the extreme step of removing a fiduciary the allegation of a breach of fiduciary duty must be more than mere supposition.What is the impact of estate litigation on an estate?
The impact of estate litigation on an estate can be significant regardless of whether or not the petitioner is successful. Any type of estate litigation will likely cause a delay in the distribution of an estate's assets.
In addition, estate litigation is costly to both the estate and to the person who initiated the estate litigation. The executor or estate administrator would have to hire an attorney to represent the estate in the proceeding. The attorney's fees may have to be paid out of estate assets. As a result, the value of the estate may decrease, unless the estate wins the lawsuit and the opposing side is required to pay attorney's fees.
If the ultimate result of estate litigation is that all or a part of a will is invalidated, some or all of the named beneficiaries will end up not receiving any distribution from the estate. Instead, the assets will be distributed according to New York's laws related to intestate succession.
Because of the complexities involved in estate litigation it is important to have an attorney who is experienced representing you. The staff at Stephen Bilkis & Associates, PLLC is 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 estate plan. We serve individuals throughout the following locations: