Suffolk County Probate Litigation

The most common way to leave assets to other is by writing a will. However, before assets can be distributed to the beneficiaries, the will must go through probate. Probate is not simple. In fact, probate can be lengthy and costly, particularly when there is a dispute that leads to probate litigation. Probate litigation may be initiated by any interested party such as someone who is named as a beneficiary in the will, a family member who was cut out of the will, or even a creditor. Probate litigation may be based on an incident that occurred years ago. In some cases a family member is upset because he or she was left out of the will. In other cases someone may be mad because another person is given a particular piece of property. Regardless of the reason for the dispute that leads to litigation the end result is that probate will be extended. This means that there will be a delay in the distribution of assets and it will cost the estate money. It is in the best interests of the estate and the beneficiaries that disputes be resolved quickly. The best way to understand the complexities involved in resolving disputes that arise during probate is get an experienced Suffolk County Probate Litigation Lawyer involved. An experienced attorney will be able to help you navigate the difficult legal issues involved in an estate dispute.

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What is a will contest?

One of the most common types of probate litigation centers on the validity of the will itself.

Improper execution. In order for a will to be valid it must have been executed according to the specific requirements of New York law. The will must be signed by the testator—the person making the will. The signing must take place in the presence of at least 2 witnesses. A witness cannot also be a beneficiary. If so, then there must be an additional uninterested witness. 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. An interested party who is unhappy with the will may try to challenge the will by arguing that it was not properly executed. Before a will can be admitted to probate the Surrogate's Court judge will review it to determine if it was executed according to New York law. A challenge to its validity will have to be reviewed. This will result in a delay.

For example, in the case of In the Matter of Herman, 289 A.D.2d 239 (2001), Edwin Herman’s will was subject to probate litigation based on an allegation that the Herman’s signature was not authentic. Ultimately, the judge determined that the signature was not forged. He based his decision largely due to the fact that the lawyer who drafted the will was present at its execution and testified to that.

Undue Influence. Undue influence means that the person making a will made certain provision in the will based inappropriate influence from someone. In other words, undue influence occurs when someone takes an advantage of his or her relationship with the testator such that the testator make a provision in his will that he otherwise would not have. For example, if over time a testator’s caretaker used lies to turn the testator against his entire family and as a result change his will to leave his entire estate to the caretaker.

Family members could contest the will. If successful, the entire will may be invalidated or the particular bequest at issue may be voided. If the will is invalidated in its entirety, then the decedent's estate will pass to the decedent's heirs based on the laws of intestate succession.

Testamentary capacity. An important requirement for a will to be valid is that the testator must have been of “sound mind and memory” at the time the will was made. This is known as having “testamentary capacity. “NY EPTL § 3-1.1. Being of sound mind and memory means that the testator cannot have a mental incapacity at the time he or she made the will. Individuals with conditions such as Alzheimer's, another type of dementia, schizophrenia, or a traumatic brain injury may not have the mental capacity to make a will. However, merely having a medical condition such as Alzheimer’s or schizophrenia does not mean that that person cannot make a will. In some cases those who suffer from such illnesses or injuries have extended periods of clarity. If the will was made during one of these periods of mental clarity then the testator had the necessary testamentary capacity. Evidence of testamentary capacity can be based on the testator's medical records, testimony from the testator's physician, testimony from the witnesses to the execution of the will, and testimony of those who were frequently around the testator such as family members or close friends. It is important to understands that testamentary capacity is not related to a testator's education, intelligence or level of sophistication.

What is the impact of probate litigation on an estate?

Probate litigation can have a significant impact on the value of an estate regardless of whether or not the action is successful. Litigation is expensive. The cost of defending an accusation of invalidity is typically paid for by the estate. This means that at the end of the litigation there is often fewer assets to distribute.

In addition, probate litigation will likely cause a delay in the distribution of an estate's assets. Generally, in New York it takes at least 9 months to wind up an estate and begin distributing assets. If probate litigation is added the amount of time before an estate is closed and the assets distributed will be extended. It is not unheard of for an estate to still be in probate after 3 years.

Because of the complexities involved in winding up an estate, including resolving probate litigation it is important for an executor, beneficiary or any interested party to be represented by someone with experience. The staff at Stephen Bilkis and Associates has years of experience representing fiduciaries and other interested parties in New York Surrogate's Court. In addition, we have worked closely with many clients to help them create wills as well as other estate planning documents. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your estate plan.

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