Lack Of Testamentary Capacity
Another ground for a Will contest is lack of testamentary capacity. The standard required for a testator to have capacity to sign a Will is relatively low, especially when compared to the capacity required to enter into a contract.
To have the capacity to sign a Will, a testator should have a general understanding of their assets and property, their family members, heirs and beneficiaries, and that they are signing a Will and they understand what it means to do so.
For example, even if a testator has been diagnosed with dementia or Alzheimers disease, it does not automatically mean they lack the capacity to sign a Will. A testator only needs to have a lucid moment or interval at the time the Will is signed and they will be found to have had testamentary capacity.
However, if it appears that the testator lacked testamentary capacity to sign the Will, the Will can be contested on this ground.
Why Should I Make A New York Will
A will, also called a “last will and testament,” can help you protect your family and your property. You can use a will to:
- leave your property to people or organizations
- name a personal guardian to care for your minor children
- name a trusted person to manage property you leave to minor children, and
- name an executor, the person who makes sure that the terms of your will are carried out.
How Much Does It Cost To Probate A Will In New York
The cost to probate a Last Will and Testament in New York depends upon two factors: The first factor is the attorney selected to assist with the probate process. The legal fees charged by attorneys varies widely, as does the way fees are charged . The second factor is the likelihood of a Will contest. If no Distributee objects to the Will being admitted to probate, probate is a straightforward affair. If, however, the Will is contested, the probate process can take years to complete.
At C. Haner Law, we prefer to charge fees on an hourly basis. This way the client only pays for what is done. If, however, the Will is not contested and all Distributees sign a Waiver of Process: Consent to Probate, we are happy to charge a flat fee if the client so desires. Our typical flat fee is $4,000.00, plus disbursements, to assist in a straight-forward probate proceeding. If, however, the Will is contested, and an hourly fee arrangement is necessary, the legal fees charged range from minimal, if the contest is concluded quickly, to substantial, if protracted litigation is necessary.
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What Is New York Probate
Each county in New York has a Surrogates Court that handles the probate of Wills and appointment of Executors, the appointment of Administrators who serve for the estates of people who die without a valid Will, and any disputes over the validity of a Will or the administration of a decedents estate.
Probating a Will is the first step in any estate administration. The Executor must locate the original Will to file with the Surrogates Court along with the will witnesses affidavits, notices of probate, and the petition for probate.
New York law requires that all beneficiaries and fiduciaries named in a Will, as well as, all of the decedents distributees be notified that the Will is being submitted to probate. Any person who would be adversely affected by the probate of the Will is given an opportunity to appear in Court to object if he or she does not sign a waiver indicating consent to probate. If no one has any objection to the Will and the Surrogate believes that the testators Will is valid, it will be admitted to probate and the person named therein will be appointed as Executor
The Will Is A Forgery
How People Forge Wills To win based on forgery in New York, a will contestant needs to prove that someone forged the signature on a will, by either writing the signature themselves and saying that the person who died is the author, importing the signature from another document, or manipulating the text in some other way .
Handwriting Expert We win forger-based will contests by bringing a handwriting expert to present evidence of other handwriting samples of the deceased. The handwriting expert would compare the handwriting on the will and would say that its not a close enough match. The handwriting expert would also determine if the handwriting on the will belongs to someone else, such as the person benefiting from the will.
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Can I Make A Digital Or Electronic Will
In a few states, you can make a legal will digitally that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. It is generally assumed that most states will allow them in the near future.
When And How To Contest A Ny Last Will And Testament
Coping with the death of loved one is a confusing and difficult time. The heartache can quickly escalate when it is revealed that the last will and testament of the decedent fails to include someone dear or provides the person of significance with a nominal inheritance. There are instances in which a disinherited party cannot and should not undertake a challenge to a will that contains unexpected or upsetting provisions. However, it may also be the case that the unforeseen beneficiaries in a will or the disinheritance of an important person in the deceased’s life clearly points in one direction that the NY will should be challenged. But how do you know when to pursue a will contest? And how can you go about it?
Who Can Contest a NY Will?
When is a NY Will Invalid?
The satisfaction of the standing requirement alone is not enough to pursue a NY will contest even if the will is blatantly unfair to one party. You cannot initiate a contest because you simply believe you are entitled to a larger share of the estate. The will itself must be flawed or the circumstances leading up to the will execution must be questionable. The four grounds for challenging a will in NY are as follows:
The First Step in Contesting a Will in NY
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Things You Should Know About Contesting A Will
You are still mourning the loss of a loved one and you just learned that you were cut out of the will. What should you do?
First, take a deep breath and remember that this happens a lot. Sometimes, it involves a divorced or widowed father marrying the so-called dreaded evil stepmother who then inherits all his assets. The news is filled with stories of celebrities, sports stars and well-known personalities whose children battle it out in court with their deceased parents usually much younger wife. While the news is full of these Cinderella stories with the stepmother played by Kanye Wests Gold Digger in reality these battles happen all the time in courtrooms all over the country starring everyone from sweet little old ladies to money hungry kids.
Lawyers often receive calls from the disgruntled heirs, seeking revenge and wanting their day in court. If you are one of them, here is what you should know:
And if you do have your day in court, remember to bring your checkbook and your antacids.
Challenging A Will Call Now For A Consultation
A will can be contested on several grounds, each with its own set of complications. The increase in blended families and second families as a result of late in life marriages has fostered increasingly complex issues in the distribution of estates andspousal right of election. It is crucial to retain a highly experienced New York will contest lawyer such as those at to ensure that the intent of the decedent is properly defended.
Need help contesting a will in NY? Call Novick & Associates, PC ator fill out ouronline contact form for a consultation.
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Who Can I Name As My Executor
You can name anyone you want as your executor. Executors duties involve probating the will, distributing the assets and handling estate related issues.
Q: Can I name more than one person as my executor? A: Yes. You can appoint co-executors. Sometimes having more than one executor can complicate matters instead of simplifying them. If you name co-executors they both will have to be available to act together with regard to handling your estate.
Q: Does my executor have to live locally? A: There are generally no restrictions as to where your executor resides. However, in most situations your executor should live within the United States of America.
Q: What are the duties of an executor? A: An executor must arrange for the burial of the decedent. He or she must gather the assets of the estate. The executor must notify the parties to the will and the next of kin of the passing of the decedent and of the existence of an estate proceeding. The executor must collect the decedent=s property and pay the estate=s bills. In the end the executor must distribute the decedent=s assets pursuant to the terms of the will.
Q:How does an individual start a probate proceeding? A: To start a probate proceeding a probate petition must be prepared. Upon submission of the probate petition and will, an original raised seal death certificate, and an original paid funeral bill must be submitted to the Surrogates Court in the County in which the decedent resided prior to his or her death.
Where Do I Keep My Will
In many situations the attorney who drafts the will maintains the will in a fire proof safe or file cabinet. If you have the original will you should keep it in a safe location. It also should be accessible at the time of your death. You should not put your will in a safety deposit box. You should advise your personal representative, , as to the location of your will.
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Will Inserting An In Terrorem Clause In The Will Prevent A Will Contest
The short answer is: not necessarily.
An in terrorem or no contest clause is essentially a forfeiture clause in a Will. It says that if a person who is benefiting from the Will turns around and contests the terms of that Will, then that person will forfeit their bequest under the Will. A no contest clause is intended to deter a beneficiary from contest a Will. Whether the clause will be a sufficient deterrent will depend on the facts and circumstances of the situation.
In terrorem clauses are not foolproof and in fact carry some element of risk. The biggest downside of using an in terrorem clause is that it exposes the nominated executor and the proponent of a Will to depositions during the pre-objection discovery phase of the Probate Process. Additionally, there are a number of steps that a potential objectant can take notwithstanding the existence of the in terrorem clause. For example, the objectant can still seek discovery of financial and medical records. The objectant can also question the witnesses to the Will, the attorney draftsman, and the nominated executor.
Fraud And Undue Influence
Another reason for contesting a will is the testator’s having been defrauded into signing it for example, if someone told you that you were signing some other document but gave you the will instead.
Undue influence is another grounds for contest and happens when someone has influence or control over the person signing the will for example, a live-in caretaker who exerts control over everything the testator does. If you are concerned that there could be claims of undue influence, talk to an attorney who can help you prepare evidence to the contrary.
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Objecting To A Will In New York
In order for a person to contest a last will and testament in New York, he or she must have legal grounds. This means a reason based in the law that the will is invalid and should not be admitted to probate. Admitting a will to probate means that the executor named in the will is appointed by the Surrogates Court. The executor then distributes the decedents assets as dictated by the will. The most common grounds for challenging a will are improper execution, lack of testamentary capacity, and undue influence. Having grounds for contesting a will takes more than simply disliking the terms of the will or being unhappy with its distribution.
A will must be properly executed to be valid. The requirements for the proper execution of a will are as follows: the will must be signed at the end thereof, the will must have been signed in the presence of two witnesses, the decedent must have declared the document to be his or her will, and the witnesses must have signed the will as witnesses at the request of the deceased. When an attorney supervises the execution, the will is entitled to a presumption that it was properly executed known as the presumption of due execution. Wills prepared from online DIY services and executed without an attorney do not enjoy this presumption.
Who Are The Interested Parties
In a will contest setting, an interested person includes children, spouse, heirs, or any other party who has a right or a claim to the property of the estate. The following people are also allowed to challenge a will:
- Beneficiaries named in a previous will
- Beneficiaries of a later dated will
- The heirs of an estate based on the laws of the state .
A neighbor who is not named as a beneficiary in a prior instrument or a subsequent will, and is not related to the decedent, has no standing to pursue a challenge.
But what if a decedent dies leaving his entire estate to his daughter, and disinherits his son and elderly mother. Can his mother contest the will? Although the mother is a relative, she is not the next of kin. If the decedent died without a will, or if his will was voided by the Surrogates Court in a successful will contest, the estate would be split between the son and the daughter, the mother is not included. The son has the right to challenge the will, but not the mother. If the decedent was not married and had no children, the mother is the next of kin and can dispute the last will and testament if she is left out.
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Will Contests The Basics
Will contests typically focus on the following three issues: due execution, testamentary capacity, and undue influence.
Due execution. The requirements for due execution in New York are minimal, but important. In New York, with certain exceptions, the testator must sign the will either in the presence of at least two witnesses or acknowledge to the witnesses that the signature on the will belongs to the testator, and the witnesses must sign as witnesses within 30 days of the testator at the testators request. The testator must declare to the witnesses that the instrument is a will .
In New York, the proponent of the will has the burden of proof on this issue. However, if the will execution was supervised by an attorney, as it typically is, the law presumes due execution. Where due execution becomes a more serious issue is often where a testator attempts to save money and prepares a will without the assistance of an attorney. Not only is the presumption of due execution lost, but there could be other issues, such as an inability to locate witnesses or, even if the will is admitted to probate, a will that creates tax and other headaches that competent legal counsel can help avoid. It is one of the Ten Biggest Mistakes You Can Make In Your Estate Plan.
A will does not have to be notarized. Notarization is only necessary if the will has a self-proving affidavit attached to it, which is used to prevent having to locate will witnesses in an uncontested probate.
Contact A New York Wills & Trusts Attorney
To discuss your situation with a New York wills & trusts attorney, please contact The Law Offices of Schlissel DeCorpo for a free confidential consultation. We can be reached toll free at 1-800-344-6431, or in the five boroughs at 718-350-2802 and Nassau County at 516-561-6645. You also can fill out our intake form, and we will contact you.
The Law Offices of Schlissel DeCorpo
479 Merrick Road
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Remedies For A Defective Will
When your lawyer is contesting a will in NY, the court will decide at a trial whether the will is valid. The executor is not permitted to distribute the estate until after the trial. If the court finds the will to be invalid, the court will do one or more of the following:
- Not admit the will
- Admit only a portion of the will
- Admit an earlier will in its place
- Not admit any of the wills, and distribute assets among the decedents relatives as if there was no will.
|Deadline Alert:||Once the court approves the will for probate, it will be too late to contest it. Act before the first hearing in the case.|
When it comes to making wills, people can take advantage of vulnerable individuals. Relatives, caretakers and so-called friends with ulterior motives prey on people who are physically disabled, cognitively impaired, isolated, confused and depressed. A victim of will fraud often loves, relies on, and fully trusts the person who misleads them. If you believe that someone took advantage of your loved one, you may be able to overturn their so-called will. This is done with the help of a lawyer through a will contest in New York Surrogates Court.
A will is presumed to be valid unless proven otherwise. If a person who signed the will wants to set up their will a certain way, its their business. In New York, you can disinherit your relatives if you wish to do so.
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