There are many great reasons to create an estate plan. The New York Probate Lawyer Blog has published many posts discussing the basics of estate planning. Preparing and signing documents such as a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust allows a person to specifically set forth their property disposition and health care goals. An article that was published by Consumer Reports on April 14, 2015 entitled “6 Costly estate planning, minefields, and how to avoid them”, provides a number of important planning considerations. For example, one of the points in the article cautions a person to know and understand the nature of their assets that would actually be controlled by a Will. Assets that pass to others by operation of law such as joint assets would not be subject to the Will provisions.
Once the decision is made to prepare a Last Will, it is imperative that the document itself and its execution be done to withstand a possible Will Contest. The New York Estates, Powers and Trusts law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” provides the statutory requirements for properly executing a Last Will. If these provisions of the law are not adhered to, a person’s estate plan may collapse due to a Contested Will.A Will can be challenged on various grounds such as improper execution, lack of testamentary capacity or undue influence. When a Will is prepared by an attorney and the Will execution ceremony is supervised by an attorney, New York probate law provides for certain presumptions regarding due execution. Therefore, it is more difficult for a contestant to defeat the Will. Estate litigation in Surrogate’s Court is a time consuming and costly process.
Another possible avenue to avoid a Will Contest is to utilize a Living Trust. If such a trust is created and all of a person’s assets are placed into the trust, there can be a distribution without having to probate a Will. The trust assets pass directly to the named trust beneficiaries.
In these situations, a Will does not need to be filed with the Court and potential Will contestants do not need to be given notice regarding a Probate Court proceeding. When a Will is submitted to the Surrogate’s Court for probate, the estate statutes require that the decedent’s next of kin be given official notice regarding the proceeding. This notice is called a Citation. Such notice would then allow a dissatisfied relative the opportunity to object to the Will.
I have represented many individuals in probate proceedings and Will Contests. If you have a question regarding these matters, call me now for a free discussion.
An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution and Will contests. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years. If you or someone you know is involved with or has questions about a New York estate or beneficiary designation, please contact me at (212) 355-2575 or email: firstname.lastname@example.org, for an initial consultation.