and Your Family
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 rooted in 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 a will contest or any other type of dispute that arise during probate is to 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.Will contest
One of the most common types of probate litigation centers on the validity of the will itself. After someone dies, that person’s will must be filed with the Surrogate’s Court along with a petition for probate. Probating a will involves proving that it is authentic. When a will is presented for probate, someone may come forward and file an objection to probate. The judge will review the objection to ensuring that there is a legal basis for the objection and that is not based simply on anger or frustration over the terms of the will. To learn about the process for filing a petition for probate or for objecting to a will, contact an experienced Suffolk County probate litigation lawyer.
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 in writing and signed by the testator—the person making the will. The signing must take place in the presence of at least 2 competent witnesses. Each witness must be at least 18 years old and must be mentally competent. A witness cannot also be a beneficiary. If so, then there must be an additional uninterested witness. The law also allow someone else to sign the will for the testator. However, the testator must direct that person to do so and the person must sign the will in the presence of the testator. 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.
Undue influence. Undue influence means that the person making a will made certain provisions in the will based inappropriate influence from someone else. In other words, undue influence occurs when someone takes an advantage of his or her relationship with the testator that results in the testator making gifts in his (or her) will that he would not otherwise have made. Undue influence is different from a friendship developing naturally over time resulting in the testator leaving the friend a testamentary gift. As an experienced Suffolk County probate litigation lawyer will explain, the actions of the influencer must be nefarious and intentional. 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, the caretaker would be guilty of undue influence.
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. If the decedent executed a prior will, the court will probate the prior will if it deems it to be valid.
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 did have a mental incapacity at the time he or she made the will. Individuals with conditions such as Alzheimer's, other types of dementia, schizophrenia, or a traumatic brain injury may not have the mental capacity to make a will. However, merely having a medical condition that impacts cognitive ability 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. As an experienced probate litigation attorney in Suffolk County will explain, 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 near the time the will was executed such as family members or close friends. It is important to understand that testamentary capacity is not related to a testator's education, intelligence, or level of sophistication.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 executor has the duty to defend the estate against will challenges and other disputes. 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. This can have a significant impact on a small estate.
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.Contact the Law Offices of Stephen Bilkis & Associates
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 experienced probate litigation attorneys serving Suffolk County at the Law Offices of Stephen Bilkis & Associates have years of experience representing fiduciaries, beneficiaries, and others involved in estate matter in the New York Surrogate's Court. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Suffolk County, Queens, Nassau County, Bronx, Staten Island, Brooklyn, Manhattan, Long Island, and Westchester County.