Probate is the legal process typically required after an individual’s death to settle and distribute the decedent’s estate. The probate process can be costly and complicated even without disputes; however, when a dispute turns into litigation, it can wreak havoc with the administration of the estate. The Staten Island probate attorney at O’Reilly Law Firm PLLC helps explain why you can avoid a fight over a will.
Most people leave behind an estate when they die. That estate consists of all assets, both tangible and intangible, owned by the decedent at the time of death. Probate is the legal process by which those assets are identified, located, valued, and eventually distributed to the intended beneficiaries and/or legal heirs of the estate. Creditors of the estate are also notified and provided an opportunity to file claims during the probate process.
If the decedent left behind a valid Last Will and Testament, the individual named as the Executor in that Will is responsible for overseeing the probate process and the terms of the Will are used to determine how the estate assets are distributed. If the decedent died intestate (without a Will), someone typically volunteers to be the Personal Representative and oversee the probate of the estate and the state intestate succession laws dictate how estate assets are distributed. If the decedent left behind a trust, assets held in the trust are not required to go through the probate process. Instead, the Trustee of the trust can distribute those assets to the named beneficiaries at any time according to the terms of the trust immediately after the Settlor’s death of the trust terms allow.
Common Causes of Probate Litigation
As you may well imagine, disputes can occur during the probate of an estate. In fact, the frequency with which probate litigation occurs has been increasing in recent years. Some of the more common causes of probate litigation include:
- Contesting a Will. To contest a Will you must allege, and eventually prove to be successful, that the Will is legally invalid for one of several allowable grounds. When a Will contest is initiated, the entire probate process effectively grinds to a halt to focus on the challenge to the Will. Until that issue is decided probate cannot move forward because the outcome of the Will contest determines how the estate is probate, using the terms of the Will or using the intestate succession laws. The five reasons to contest a Will in New York State are:
- Improper Execution – the correct formalities were not followed when the Will was signed;
- Undue Influence – the Testator was improperly persuaded to enter into a testamentary plan;
- Lack of Testamentary Capacity – the Testator did not possess the requisite mental capacity to understand their testamentary plan or that they were signing a Will;
- Fraud – the Will that was offered for probate was the product of fraud. Examples include that the Testator thought they were signing a different document or that the signature on the Will offered for probate is not the Testator’s.
- Revocation – the Will offered for probate had been revoked by the Testator.
Prevent Your Family From Wasting Time, Energy and Money on Wasteful Will Contests
Estate Planning can be complex on many different levels. First, you may be able to protect family members when receiving assets upon your passing in ways that you are currently unaware are possible. Additionally, once you know what to protect it is vital that those concerns and interests are clearly stated without ambiguity or confusion. Finally, protecting the interests and concerns you have identified may require the inclusion of clauses that initially seem confusing but are very manageable to an experienced estate planning attorney. To increase your chances of succeeding and preventing your family from becoming mired in a costly and wasteful estate litigation it is advisable to consult with an experienced estate planning attorney to give you the assistance and counsel you require to protect you and your loved ones..
Contact Our Staten Island Estate Planning and Probate Attorney
For additional information on how you can avoid a fight over a will or other probate matters, please join us for an upcoming FREE seminar. If you have questions or concerns about probate litigation, contact our experienced Staten Island probate attorney at O’Reilly Law Firm PLLC by calling 332-456-0500.
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