When planning an estate, a person may consider many different provisions that can be a part of a Last Will. Of course, many of the Will terms concern the disposition of assets and bequests to various beneficiaries. A Will may contain a bequest of an amount of money or a devise of a specifically identified parcel of real property.
There are parts of a Will that contain a residuary clause and also the nomination of executors or trustees. Some provisions also are inserted to create a testamentary trust or provide for the appointment of a guardian for a minor.
New York estate lawyers are also familiar with “No Contest” clauses which are also known as “In Terrorem“ clauses. These types of clauses are discussed in Estates, Powers and Trusts Law section 3-3.5 which is entitled “Conditions qualifying dispositions; conditions against contest; limitations thereon”. The effect of this clause is that if a person engages in certain actions like a Will contest, he loses the right to receive any bequest under the Will.
The Probate of a New York Will is the method by which a Will is validated by the Surrogate’s Court. After a Will is admitted to probate the named Executor is typically granted letters testamentary which authorizes him to handle estate affairs. This includes the collection of estate assets, the payment of debts and expenses and the distribution of the net estate to the beneficiaries according to the provisions of the Will.
The probate process requires that notice of the proceeding be given to the decedent’s distributees (next of kin). These individuals have a right to file Objections to the Will. Notice is typically given by the service of a Citation which is like a Summons. The Citation sets forth a date for the parties to appear in Court. The New York Probate Lawyer Blog has published many articles concerning probating a Will.
If any of the distributees want to contest a Will they must file Objections. Usually, Objections are that the Will is invalid due to improper execution or that the decedent did not have testamentary capacity or that the Will was the product of undue influence.
The execution of a Last Will in New York is controlled by Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements”. Estate Lawyers are familiar with statutory requirements that a Will should be in writing and that there needs to be at least two attesting witnesses.
When a Will is offered for probate in the Surrogate’s Court it is necessary to notify the decedent’s distributees (next of kin). These individuals have the right to file Objections to the Will. Typically the distributees receive a Probate Citation which is like a Summons. The Citation provides a Court date on which the person receiving the Citation must appear in the Surrogate’s Court and advise the Court regarding his Objections to the Will. Continue reading
Most people prepare their estate plans and Last Wills and expect that the provisions and directions they set forth can be carried out after death. The rationale for planning an estate is to avoid intestacy which would leave to chance the manner in which an estate is to be distributed. As discussed in many articles in the New York Probate Lawyer Blog, when a person dies without a Will, the New York estate laws provide that the estate is distributed to the decedent’s next of kin. This result may not always reflect a testator’s intent.
When a Will is submitted to the Surrogate’s Court for probate, the estate laws and procedures require that official notice be provided to the decedent’s next of kin. This is because these individuals have a right to contest the Will. If a Will is invalidated, the decedent’s estate is distributed to the next of kin. Continue reading
It is important to know your rights if you are disinherited. New York inheritance laws are rather complex. There are many occasions where a close family member learns that they have not been provided for in a decedent’s Last Will. These situations often result in Estate Litigation in the form of a Will Contest.
A recent case involving the death of French rock star Johnny Hallyday is a typical example of children being left out of a Will. In an article by Henry Samuel in a February 2018 post of The Telegraph, it was reported that Mr. Hallyday left his entire fortune to his fourth wife. Two of his older children were left nothing in a Will which was redone shortly before Mr. Hallyday died. Continue reading
Contesting a Will in New York involves many different issues. The validity of a Will must be challenged on various specific grounds. The New York Probate Lawyer Blog has discussed these grounds in many prior articles.
One of the basic allegations in a Will dispute is that the document was not properly executed. Estates, Power and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements”, provides the statutory requirements for Will execution. These rules include the need for a written document that is signed by the testator at the end and witnessed by two individuals. Continue reading
Will Contests in New York are part of a probate proceeding. When a Last Will is filed for probate, official notice must be given to the decedent’s distributees (next of kin). The distributees have a right to contest the Will. In the event the Will is found to be invalid the distributees would inherit the estate pursuant to the laws of intestacy.
The New York Probate Lawyer Blog contains numerous articles concerning the discovery process in contested probate proceedings. Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required” contains provisions that allow prospective Objectants to obtain documents and testimonial discovery before having to file formal Will Objections. Continue reading
Probating a Last Will in New York can be an uncomplicated matter. In many situations the probate proceeding is commenced by a close family member who is named as the Executor in the Will. While there are a number of Court and statutory formalities that must be adhered to, the assistance of an experienced New York City Probate Lawyer can facilitate the process.
I have represented clients for over 30 years in all types of probate proceedings both contested and uncontested. The New York Probate Lawyer Blog provides numerous articles discussing the many issues that can arise regarding Surrogate’s Court procedures. Continue reading
The New York Probate Lawyer Blog in the March 1, 2017 posting discussed some of the aspects involved in a Will Contest in New York. The post referred to a decision by Queens Surrogate Peter Kelly dated February 9, 2017 which dismissed the Objections to the Will and admitted the Will to probate. The decision was in a case called Will of Bellasalmo. One of the Objections to the Will in Bellasalmo was based upon the assertion that the Will was the product of a mistake. The Court pointed out that in order for an Objectant to demonstrate a mistake, it would need to show that the decedent failed to understand the terms of the Will or that the attorney who drafted the Will did not follow the decedent’s instructions. Since the Objectant in Bellasalmo could not provide any evidence in this regard the Objection based upon mistake was dismissed.
It should be pointed out that in a Will Contest case, the Objections that are filed contain a number of different allegations. Typically, the Objections will claim lack of due execution, lack of testamentary capacity and undue influence. Continue reading
Will contests in New York involve many different considerations. To begin with, there is a complex set of statutes and rules regarding the procedure to be followed in these cases. When a Will is filed with the Court for probate, it is necessary to provide notice to all of the decedent’s next of kin regarding the probate proceeding. The next of kin, known as distributees, have a right to Object to the Will. The notice they receive is called a Citation.
Prior to filing Objections to a Will, the distributees have the right to obtain testimony and documents from the attorney who drafted the Will and the attesting witnesses. These steps are provided for by Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required”. Continue reading