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Contested Wills or Probate


Just because a person has a will does not mean that their estate and assets will be distributed to recipients automatically upon their death. In New York, as in other states, the will must be passed through the probate process in order to initiate the distribution process.

This is usually done by the person who is named as the executor in the will. This is the person who will be responsible for initiating probate and overseeing its general execution during the process. They may be responsible for such items as classifying property, marking beneficiaries for distribution, and dealing with taxes or outstanding debt.

The term “probate” refers to the legal process in which a deceased individual's estate is taken care of under the supervision of a court. For instance, probate can be used to establish the legal validity of a will document, to correctly distribute assets to any beneficiaries named in the will, and to establish a plan for paying off any taxes or debts owed by the deceased's estate.

In general, the probate process is typically handled by what is known as the “probate court.” Thus, it follows that the purpose of a probate court is to oversee matters involving the deceased's estate, such as the probate of wills, estate administration, and guardianships of an estate.

Also, depending on where you live, your local probate court may go by another name, such as a Chancery Court or a Surrogate Court. Regardless of which name is used in your state, it is the court you will have to attend if you are dealing with issues that involve probate matters.

Types of Assets or Accounts Not Subject to Probate in New York

While most of a person's assets are subject to the probate process, there are certain mechanisms by which a person can avoid probate. This may be helpful for the surviving relatives and friends, as the probate process can consume much time and resources. Assets or accounts that are not subject to the probate process in New York include:

  • Payable on death accounts: Beneficiaries can often access monies held in such accounts without going through the probate court
  • Property held as joint property
  • Transfer-on-death properties: These may include many types of properties, including securities and vehicle titles)
  • Living trust accounts

Common Will Disputes in New York

Wills that are not properly written or are unclear may lead to various legal disputes. Some common will disputes include:

  • Instances where the wrong person gets an item of property
  • Instances where a beneficiary gets the wrong property or the wrong amount
  • Conflicts regarding titles and deeds (i.e. partial property interests)
  • Disputes over the valuation of an asset or property item

These types of disputes may require additional research and analysis in order to resolve them. Again, this can be an additional strain on the beneficiaries and recipients, so it is recommended that a will be revised and reviewed periodically, especially after major life changes or acquisitions.

Contesting a Will

A will is the legal document that a person may create to express how they want their property distributed and who they want that property distributed to after they are deceased. In order to contest the contents of a will, both the party and the reason for contesting the will must meet the proper legal standards to be heard in court.

If both the reason and party are legally eligible to be heard, then the party can initiate a lawsuit by filing an action with the probate court. It is important to file as soon as a dispute arises. The reason for this is because there is usually a time limit (i.e., a statute of limitations) in every state that prohibits lawsuits concerning the will once this period has lapsed.

Contesting a will is often a challenging process. If there is not enough clear and convincing evidence to show that the reason for contesting the will is valid, then the court will most likely not interfere with the deceased's original wishes. Also, it is hard to dispute the terms of the will when it is no longer possible to ask the person who wrote it.

Lastly, although a person can file a claim without the help of an attorney, it is generally recommended to retain one given the difficulty of probate laws and the nature of such cases.

Contesting a Will Before Death

In general, it is usually not possible to contest a will before the testator has died. The reason for this is because wills are meant to take effect after their death, so right now the will is just simply future instructions that cannot be acted upon yet. Also, if there seems to be an issue that could eventually turn into a dispute, the testator has time during their life to re-draft, amend, or change the contents of their will.

There are several states (i.e., Ohio, Alaska, North Dakota, and Arkansas), however, that permit “ante-mortem” probate or “before death” probate. The probate laws in these states allow a testator to seek court approval regarding the validity of their will. The laws also permit intended beneficiaries of the will to become parties to the will contest dispute. This type of probate can help prevent future will contests from occurring after the testator is deceased.

Therefore, if a person lives in one of these four states and is either the testator or intended beneficiary of a will, then they will be able to contest it before the testator dies. On the other hand, if the person lives in a state where the law clearly states that no one can contest the will before the death of the testator has occurred (e.g., Florida), then they will not be able to challenge it until that time has come.

Contesting a Will After Probate

As discussed above, wills generally need to be contested before the probate process has begun and prior to the lapse of the statute of limitations. Otherwise, litigation over distribution of property or other will disputes could go on indefinitely, making it impossible to pay the rightful beneficiaries or creditors owed, and expending what is left of the resources of an estate.

That having been said, while it is very difficult to contest a will after the formal probate process has ended, it is still possible to do so if certain circumstances are present.

For example, a party may request to contest a will after probate in cases where the will has been forged or is fraudulent. Another common scenario is when a party believes that the testator lacked testamentary capacity when drafting and signing the will document.

Some other grounds for contesting a will after probate include:

  • Coercion;
  • Duress;
  • Improper will execution or procedure; and
  • The estate has not been properly administered.

Additionally, it is important to note that even if the above scenarios exist, the party contesting the will on those grounds must still abide by the statute of limitations for after probate procedures. Also, the general time frame and rules governing these types of procedures will vary depending on the laws of a state.

Ultimately, a party should strive to contest a will before the probate process has begun and definitely before the statute of limitations has passed. This will help them to avoid the difficult process of trying to contest a will after probate has ended.

What Happens After a Will is Contested?

After someone files a petition to contest a will, the probate court selects a date to schedule a hearing. While awaiting the hearing, the petitioner should collect as much evidence as possible to demonstrate why they have a valid argument to contest the will.

As mentioned, a person should generally only file a petition if they have standing and have a legally valid reason to contest the will. They should also check that the will does not contain a “no-contest” clause.

During the hearing, the court will review any of the evidence that the petitioner has gathered as well as the will instrument itself and any evidence that the estate has to offer.

If the court finds that the will is void based on the petitioner's argument, then they will request to see any previous drafts or surviving copies of the testator's valid wills. If one of those documents exists, then the court will move forward with the testator's wishes that were expressed in the other versions of the will.

On the other hand, if there are no other wills in existence and the petitioner's argument is valid, then the court will strike the will being contested and treat the testator's estate as if they died without making a will. Thus, the contents will be distributed according to the intestacy laws of the state in which the probate proceeding is being held.

Avoiding Probate Court

Generally speaking, most people would prefer to avoid the probate process because it is often time-consuming, can be expensive, and does not allow for any privacy since probate hearings are matters of public record.

One way to avoid having to go to probate court is by creating a living trust. A living trust is one that is formed when the owner of the property and/or assets is still alive. The property owner will then appoint a trustee to oversee the trust. In the event of the owner's death, the trustee will also become responsible for distributing the contents of the trust to its assigned beneficiaries.

In most instances, having a living trust will negate the need of having to attend probate court hearings since the trustee will be able to manage the entire process themselves by completing some simple paperwork.

Another way to avoid probate is by having a life insurance policy or bank accounts that are payable upon death. In either case, the holder of the policy or account owner can name specific beneficiaries to receive the funds immediately after they pass away. These two methods are often used to prevent the process of probate.

One last way to avoid probate is by setting up a joint tenancy with a right of survivorship. A joint tenancy is a type of estate that gives the parties an equal interest in the property. In such a scenario, if one of the parties passes away and the other is still alive, then they will automatically become the sole owner of that property due to the right of survivorship.

However, it is important to check local laws regarding this kind of estate since they are usually different for every state.

Preparing for a Contested Wills or Probate Consultation

The first step to making a strong contested wills and/or probate case is to hire an experienced estate lawyer. The initial meeting with the lawyer, also called an attorney, is called the consultation. It is important to take some time to make preparations for this appointment in order to get the most out of the time with an attorney.

It is important for an individual involved in a will contest to be aware of the circumstances that surround the process. Reading this information may cause an individual to remember important information that should be brought to the attention of their attorney.

There are some requirements for a will to be valid. There are also some requirements for contesting a will.

Since wills determine who inherits property when a loved one passes away, there may be conflicts. These conflicts are referred to as will contests. They usually involve the beneficiaries, or recipients, or property. Contesting a will means an individual challenges the authority and/or validity of the will and its provisions.

In many cases, an individual contests a will when they feel cheated out of something the testator intended for them to receive. An individual may perceive the distribution outlined in the will to be unfair.

An individual must have standing to contest a will. In order to have standing, the individual must be a named beneficiary in the will. In addition, an individual who could lose their inheritance under the will should it be deemed invalid has standing to contest the will.

A will may contain an anti-contest clause. This clause provides that any beneficiary who attempts to contest the terms of the will will automatically forfeit any claim they may have to an inheritance under the will. There may be exceptions to this clause, depending on the circumstances that would lead to a will contest, such as duress. Some states, such as Florida and Indiana, do not allow anti-contest clauses. The rules regarding these clauses will vary by state.

Probate is the legal process by which a decedent's estate is administered under court supervision. Probate may be used for any of the following:

  • To establish the legal validity of a will;
  • To distribute assets to any beneficiaries named in the will; and
  • To establish a plan for paying off any taxes and/or debts owed by the deceased's estate.

Depending on the jurisdiction, the probate court may be known by another name, such as a Chancery Court or a Surrogate Court. Regardless of the name used, this is the court an individual will appear before regarding probate matters.

Documentation and Questions I Should Prepare Before Meeting with My Wills, Trusts, and Estates Lawyer

It is important to gather relevant documents and compile a list of questions prior to a meeting with an attorney. Relevant documents may include:

  • A copy of the will itself;
  • Any documents supporting the contest claim; and/or
  • Any other documents requested by the attorney.

It is important to compile a list of any questions that an individual may have prior to the consultation. This will allow the attorney to address and explain any concerns an individual may have prior to proceeding. Some questions an individual may have can include:

  • Do I have standing to contest the will?;
  • What are the consequences of contesting the will?;
  • How long will a will contest take? and/or
  • Any other questions an individual may have.

It is important to note that there is no frivolous question regarding a case. It is the attorney's job to explain the circumstances and ensure their client understands the issues involved.

Making a Contested Wills or Probate Case Strong

As noted above, the first step to making a strong contested will or probate case is to have the assistance of an attorney. An attorney will review the case prior to filing a contest to ensure the individual has standing as well as meets the proper legal standards to be heard in court.

Once these requirements are met, the attorney will file an action in the probate court. It is essential to file the action as soon as a dispute arises. In every state, there are statutes of limitations, or time limits, that prohibit certain lawsuits once a time period has elapsed.

Will contests are often difficult to prove. That is why the assistance of an attorney is so invaluable. A court will be hesitant to alter the original wishes of a testator. An attorney will be aware of how to present an effective case to the court and what evidence will be required.

It is very difficult to contest a will after the probate process has ended. It may, however, be possible under certain circumstances. Common examples include a forged and/or fraudulent will and/or a testator who lacked testamentary capacity.

Other grounds for contesting a will after probate may include:

  • Coercion;
  • Duress;
  • Improper will execution and/or procedure; and
  • The estate was not properly administered.

It is important to note that there will likely be a statute of limitations that applies to these claims. These will vary by state.

Once a will contest petition is filed, the probate court will schedule a hearing. The purpose of the hearing is to present the evidence the parties have regarding the will contest.

If the court voids a will based on a petitioner's argument, they will request any previous drafts and/or copies of the testator's valid wills. If any of these exist, the court will likely follow the instructions provided in another version of the will.

If no other versions of the will exist, the court will strike the invalidated will and treat the estate as if the individual passed away without leaving a will. In these cases, the decedent's property will be distributed according to the intestacy laws of the state in which the probate proceeding is being held.

Wills that are poorly written are frequently contested. The best way to avoid a will contest is to use language that is clear and specific. An individual can modify their will as many times as they choose over their lifetime.

Dos and Don'ts for Contested Wills or Probate Cases

Some “do's” for contested wills or probate cases include:

  • Do: Hire an attorney. Will contests can be complex. They involve presenting evidence to a specific court and are not easily handled by an individual alone.
  • Do: Gather as much evidence as you can to support your case. Will contests can be difficult to prove so the more evidence that can be presented, the better.
  • Do: Hire an attorney and make your own will so your family members do not have to involve themselves in a will contest case.

Some “don'ts” for contested wills or probate cases include:

  • Don't: Handle it alone. Especially if the other party has an attorney. Having the assistance of an attorney gives you a great advantage.
  • Don't: Lie about any aspect of the will contest. You may feel like the testator's wishes were unfair but it is important not to be greedy and make false statements and/or accusations in an attempt to increase your inheritance.
  • Don't: Start a will contest for a frivolous reason. These issues can divide families and cause great conflict.

How Can A Lawyer Help Me With My Wills, Trusts, and Estates Issues?

New York probate laws can be complex and may contain various exceptions. You absolutely need an estate lawyer for any wills, trusts, and estate issue. These are complex matters that follow specific guidelines. The laws regarding these issues also vary by state. An attorney will be able to advise you on the matters in general as well as the laws in your jurisdiction.

If you must attend probate court, a probate lawyer will help you handle any disputes regarding the distribution of property, a challenge to contents of a will, and/or a situation when there is not enough money available for the estate to pay off its debts and/or taxes.

Will contests may be time consuming and complex. An attorney will determine whether you have the standing to contest a will. If you do, the attorney will assist you in the will contest as well as represent you during any probate court proceedings.

Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.