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Trust & Estate Litigation

When it comes to estate planning, no two individuals or families are alike. You need an attorney who will listen to your questions, hear your concerns, and provide a personal approach and estate plan tailored to your personal needs.

When you don’t have an estate plan, the court will decide what happens to your assets based upon New York statutory provisions. Those statutory provisions are often different from how you would what your assets distributed. For example, if you die without a will leaving behind a spouse and children, your spouse does not automatically receive your entire estate – – it will be shared with your children. Additionally, you may have wanted the children’s share of your estate to be held in trust until they reach age 21, or 25, or 30. That will not happen without a will.

Proper estate planning will save you and your loved ones from some of the stress and difficulty faced when you do not have a will and other estate planning documents that are tailored to your needs. You need an estate plan that is right for you and your family.

Contested Estate Proceedings

A properly drafted estate plan should account for all foreseeable pitfalls down the road. It is often the case, however, where dated, ambiguous, or poorly drafted documents lacking the creator’s true intent are left in place, and ultimately become subjects of dispute.

I have represented creators, executors, trustees and beneficiaries in contested proceedings involving wills, trusts, and estates – specifically including: objections to a will; accounting by trustee; removal of trustee; removal of executor; claims presented on behalf of estate; claims defended on behalf of estate.

Who Can Object to a Will

Any person named in a will can object. That is, a beneficiary or even a named fiduciary. A person not named in a will can also object, so long as they’re in the class closest heirs who would inherit if the will was invalided and the estate was distributed as though the Decedent died without a will.

The Four “Standard” Objections to a Will

Lack of Due Execution – A will must conform to all statutory requirements with respect to witness attestations and signature verifications for the creation of a duly executed instrument.

Lack of Testamentary Capacity – Decedent must be 18 years old, and of sound mind and memory at the time of signing their will. A known alcoholic can prepare and execute a will if he’s sober.

Undue Influence – The exercise of someone of influence over the Decedent which, in essence, overpowers the Decedent’s volition, to the extent that the other person’s “will” is superimposed over that of the Decedent.

Fraud – The act of deceiving Decedent into executing an instrument which does not accurately reflect Decedent’s testamentary wishes.

What Happens After a Will is Invalidated

After a will is invalidated, the default rules of New York State are applied as though the Decedent died without a will. After the payment of funeral and administration expenses, there is a cascading order for establishing which class of a Decedent’s heirs is entitled to a share of his estate – beginning with a surviving spouse and children, if any, and contemplating all contingencies until ultimately escheating to New York State.

Conte Legal is one of the areas leading estate planning and elder law firms. With locations in both Westchester County and New York, we are accessible and connected to the community.