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
Probating a Will in New York is usually not a contentious process. The original Will is filed with the Court and typically the person named in the Will as the Executor prepares and files a Probate Petition. When a Will is admitted to probate, the Court issues Letters Testamentary to the petitioner. This document provides the executor with the authority to administer the decedent’s estate.
As discussed in prior posts in the New York Probate Lawyer Blog, all of the decedent’s next of kin (“distributees”) must be given notice of the probate proceeding. Each distributee has a right to object to the Will. The procedures involved with Will Objections necessitate that all of the parties engage in a discovery process so that the Court can be presented with facts regarding the validity of the Will. Continue reading
In most instances the filing of a Last Will for probate is a straight forward process. The New York Probate Lawyer Blog has posted many articles regarding the probate of a Will. The typical persons who petition the Court in these proceedings are close relatives such as a spouse or children. Moreover, it is rather common that the Will beneficiaries are the same close relatives and that all of these individuals receive benefits under the Will provisions.
For example, a familiar scenario is a Last Will in which the decedent leaves his entire estate to his spouse if the spouse is living and if the spouse is not alive, then equally to his children or descendants. Continue reading
There are many types of proceedings that occur relating to a decedent’s estate. One of the most common matters involves the probate of a Last Will and Testament. New York estate lawyers are familiar with the manner in which a Will is presented to the Surrogate’s Court. In the typical case, the original of the Will is filed with the Court along with a death certificate, a petition and other papers. Having a Will admitted to probate simply means that the Will is validated by the Court and its provisions regarding asset distribution and other directions must be followed. At the time probate occurs the Court appoints an estate fiduciary who is typically the Executor nominated in the Will. The New York Probate Lawyer Blog has posted many articles explaining the probate of an estate.
In some situations the probate process turns into a Will Contest. When the situation concerns a contested Will, the typical occurrence is that one or more of the decedent’s next of kin (“distributees”) disputes the validity of the Will. This dispute can be based upon the grounds of undue influence, lack of testamentary capacity or improper execution of the Will. Continue reading
There are countless articles and advisory papers that have been written in which people are urged to prepare an Estate Plan. The use of advanced planning documents such as a Last Will, Living Will, Power of Attorney, Health Care Proxy and Living Trust allow a person to specify the manner in which assets are to be managed and tranferred and substituted decision making can be established.
As discussed in many posts in the New York Probate Lawyer Blog, where these planning papers do not exist, the disposition of a person’s estate is left up to the inheritance provisions of State law relating to intestacy. Continue reading