WHO IS IN CHARGE OF SETTLING AN ESTATE WHEN A WILL IN NOT PRESENT?

If someone dies with a will, their will specifies who receives their property and who is in charge of settling their estate (called the executor). Beneficiaries can feel slighted by what they did or didn't receive, and some individuals are entirely excluded from inheriting anything at all. The legal process of challenging the validity of a will is called a will contest (or “contesting a will”).

Once probate is underway, the named executor will take the necessary steps to complete probate and notify beneficiaries named in the will. This legal notice typically limits the time when a beneficiary can contest the validity of the will. Generally, a beneficiary (and even a person not named in the will) has thirty to ninety days to bring legal action against the decedent's will.

Know that the vast majority of wills pass through probate without issue. The courts rightly view the will as the author's (testator), last voice. Because the testator can no longer speak to their wishes, the courts try to adhere to the legally filed will stringently. Because of the narrow timeline for filing a will contest and the odds stacked against winning the legal challenge, most challengers will find it a costly endeavor.

CONTESTING A WILL:

Under what circumstances then would you want to contest a will? Legally, only a person or entity with "standing" can contest a will. Standing is when the party involved in the will contest will be personally affected by the case's outcome. Most often, this means an heir or beneficiary already named in the decedent's last will or any preceding will. It may also include any person (usually a spouse or child) not named in the will, but because of state intestacy laws would be eligible to inherit in the absence of a will. Typically, four grounds are viable for contesting a will:

• The will's signing lacked the proper legal formalities

• The mental capacity of the decedent to make a will is in question

• Someone leveraging under influence over the decedent into making or changing a will

• The will's procurement is fraudulent

NO-CONTEST CLAUSE IN NEW YORK:

Some wills include a no-contest clause also called an “in terrorem” clause. This provision states that if anyone files a lawsuit challenging the will's validity, they will receive nothing from the estate. While this may be a powerful deterrent, it may not be allowed in the state where the will is probated.

To protect your will from being contested, even if you have limited assets, your best strategy is to have your will professionally drafted by an attorney well-versed in estate planning. Using an attorney can help protect you and your estate from future legal challenges while helping you think through who you want to inherit your money and property, and how each person should receive what they inherit. 

This document is designed for general information only. The information presented on this document should not be construed to be formal legal or tax advice nor the formation of a lawyer/client relationship. 

For more information on this and other topics, please contact Kevin via any of the channels listed below:

📧kevin@kmckernan.com or 📞718-317-5007