What If Someone Challenges Your Loved One’s Will
It’s important to have a will if you own any assets at all. A will enables you to leave property to your loved ones in the manner and amounts you select, set forth who will be the administrator of your estate, and avoid the cost of an administration bond. Having a will is critical regardless of the value of your estate and offers most people peace of mind.
If you die without a will, which is known as dying “intestate,” a court will appoint an administrator to collect and distribute your assets. Depending on the circumstances, the administrator could be a family member, a lawyer, or a public official. Also, if you die without a will, the New York laws dictate how your assets will be distributed. These rules, which are called the “Distribution Rules of Intestacy,” reflect the New York legislature’s decision about which is the correct way to distribute assets in most cases.
It’s important to consult a Long Island will attorney to determine how these statutes might apply to a specific situation, but generally in New York:
- If there is a spouse and descendants, the spouse takes the first $50,000 and one-half the balance of the property, and the descendants share the rest;
- If there is only a spouse and no descendants, the spouse takes all;
- If there is no spouse but only descendants, descendants take all;
- If there is no spouse or descendants but there is a living parent or parents, the parent or parents take all.
The rules can be complicated, and there are other statutory distribution rules as to relatives further down the line. Generally, where “descendants” include a mix of generations, living children take a full equal share, and the children of predeceased children then divide equally the share of their deceased parent.
This allocation may differ from the distribution you desire. A properly drafted will can enable you to direct the distribution of your assets in accordance with your wishes.
If you have young children, it is especially important that you have a will. If any of your children are under the age of 18 at your death and you die intestate, a court-appointed guardian may be required to manage your minor child’s share of your assets. Although the court probably would appoint your spouse as guardian of the property for your minor children, this is not guaranteed.
What Is The Best Way To Create A Will?
How do you start making a will? You could use online forms or go to the bookstore and buy a book on wills. But without legal expertise, you could miss an important element of a comprehensive estate plan. As you can see, New York State has very specific rules regarding the execution of wills. If the rules are not followed, you will not have a document that a court can recognize as your will. An invalid will can result in a court-appointed administrator and application of the Distribution Rules of Intestacy summarized previously. Securing the professional guidance of an attorney can resolve these issues.
What If A Will Is Challenged?
What should you do if someone challenges a will to which you are a beneficiary? A will challenge, also known as a will contest, requires a filing in the Surrogate’s Court in New York. This is a special court that handles probate and estate administration matters. In New York, only certain parties have the legal standing to challenge the validity of a will. These are the parties that have standing to challenge a will:
- Heirs at law: In New York, the heirs at law include the spouse, children, parents, siblings, and any other relatives who would be entitled to a share of the estate if there were no will.
- Devisees: Devisees are individuals who are named as beneficiaries in the will. If a devisee is unhappy with the terms of the will or believes that it is invalid, they may challenge the will.
- Beneficiaries under a prior will: Beneficiaries under a previous will have standing to challenge a later-made will that either does not name them as a beneficiary or reduces their share from the earlier will.
- Creditors: Creditors of the estate may also have standing to challenge a will if they believe the will will undermine their ability to be made whole.
Implications of a Will Contest
Will contents are rarely pleasant. The potential negative implications if there is a will contest include the following:
- Family relationships may be severely strained;
- There is a high likelihood that there will be a delay in distribution of the estate;
- Your legal costs are likely to increase as your attorneys put in more hours on the case;
- There is the risk of losing your inheritance. If a will is deemed to be invalid, the distribution will default to the rules of intestacy that are identified above.
It is important to note that not all will contests have negative consequences. In some cases, a will contest can result in a more equitable distribution of the deceased person’s assets, particularly if the will is found to be invalid due to undue influence, fraud, or other improper conduct.
Contact a Long Island Will Attorney at Davidow, Davidow, Siegel & Stern
In New York, wills must comply with the state’s stringent requirements for execution, including being in writing, properly signed, and witnessed. So it’s imperative that you and your loved ones understand what’s required for a legally sufficient will to fend off will challenges. If someone challenges a will in which you have an interest, the most important thing to do is contact a Long Island will attorney without haste.
At Davidow, Davidow, Siegel & Stern, LLP, we have over 100 years of experience acting as trusted advisors in the area of wills, trusts, probate and estate administration, and elder law. We are a highly experienced and client-focused team, and we provide up-to-the-moment legal guidance. Contact us today at 631-234-3030 to see how we can serve you.