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Probate Litigation

Probate is the legal process of passing the decedents assets to the living.

During the legal process of probate a person’s debts are paid by the estate and the remaining assets owned by the decedent are distributed to the living heirs.  Sometimes a will is involved, sometimes not.  While the probate matter may involve oversight by a New York court, there need not be any formal lawsuit involved; however, there are times when adversarial matters arise in probate.  When these controversies culminate in formal lawsuits being filed, they will involve what is referred to as estate litigation or probate litigation.

 What is probate litigation?

When a deceased person’s Last Will and Testament is offered for probate, there are many requirements placed upon the probate process by New York law.  Creditors and heirs are all permitted various rights, privileges and limitations that must be strictly followed.  The Will itself is available for review, and not everyone involved may be satisfied of the result; when the provisions of the Will are read in conjunction with the legal mandates.

Trust vs WillsRemoval of a Trustee * Guardianship * Probate * Beneficiary Rights
In Home Care * Supplemental Needs Trusts  * Fraudulent Transfers * Guardianship Litigation
Medicaid Asset Protection * Probate Litigation * Estate Litigation * Living Trusts

Probate litigation often involves a will contest.  In New York, probate litigation is one of the most contested areas of the law; used by surviving family members to correct an array of injustices.

Usually, New York probate litigation is first considered by an individual when they receive a Notice of Administration.  This is a formal document that alerts all interested parties of the death of the decedent, the filing of a Will for probate, and that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred.

The recipient of a Notice of Administration will have a unique situation, and a dispute that may have a variety of legal bases (e.g., Undue Influence, Lack of Mental Capacity, Intentional Interference with an Expectancy, Duress, and/or Improper Signing of the Will).   However, regardless of the simplicity or complexity of their claim, or any promises made to them that things will be “evened out” in the estate or someone will “take care of it,” the Notice provisions will hold.

Once an individual is served with a Notice of Administration and a very limited time period (usually 20 days) passes, any promises, representations or guaranteed to settle any estate dispute or disagreement are worthless and unenforceable unless the parties have entered into an official settlement agreement (written, signed, etc.).

The attorneys at the law offices of Castiglia-Rubinstein & Associates can help your family navigate through the process of probate, probate litigation and make it easily manageable in your time of need. Our attorneys are not only trained in handling simple estate probate matters, we take care of complex probate and estate litigation in the event of a contest or fraud in Nassau County, Suffolk County, Queens County, Bronx, Westchester, Richmond County, Manhattan and Brooklyn Kings County New York. The laws of each state vary, so it is a good idea to consult an attorney to determine whether the fiduciary must be bonded (a requirement that may have been waived in the will) and what reports must be prepared. Most probate proceedings can be expensive and the process prolonged in the event of a contest or other unforeseen problems. Speak with one of the attorneys at the law offices of Castiglia-Rubinstein about avoiding probate altogether with a properly executed and funded living trust.

The Types of Probate Litigation

There are several grounds for contesting a decedent’s Last Will & Testament, including:

  1. Mistake in Execution – as detailed above.
  2. Undue Influence – an undue influence claim challenges whether the person making the Will did so freely and without being coerced by a person who was in a position of trust and control at the time of signing.
  3. Lack of Testamentary Capacity – a lack of capacity claim is asserted based upon the belief that at the time the Will was executed the person making the Will did not have the requisite mental ability to understand the following: a) The amount and nature of his property. b) The family members and loved ones who would ordinary receive such property. c) How the Will disposes of such property.

The standard for “testamentary capacity” is not as high as general competency. A person need only understand the nature and extent of his assets and the natural objects of his bounty (his family). Lack of capacity can be the result of the natural aging process or the result of a person being on a substantial amount of medication, e.g. heavy morphine to treat end-stage cancer. Lack of capacity litigation relies on medical records and the irrational conduct of the testator prior to executing the Will.

In addition to Will contests, probate litigation can involve:

  1. Determination of Heirs – sometimes a decedent leaves no will and had little contact with his family. The heirs need to be determined by the court.  Sometimes, the decedent has formerly unacknowledged children who wish to prove paternity / maternity and make a claim in the estate.
  2. Will Construction – sometimes Wills are vague; beneficiaries have died or disappeared; or the document does not properly dispose of the entire estate. In these instances, the assistance of the court is sought to determine how a decedent’s estate should be distributed.
  3. Elective Share Litigation– the surviving spouse of a person who dies domiciled in New York has the right to a share of the elective estate. In general terms, absent a valid pre-marital agreement, a surviving spouse has the right to claim $ 50,000 plus 50% of the elective estate. This is after the surviving spouse gets $ 25,000 of cash (if available) and the decedent’s car (up to a value of $25,000) among certain other items. The remaining portion of the estate would be split among the decedent’s children or even grandchildren, or if all of the decedent’s assets would go to the surviving spouse.
  4. Breach of Fiduciary Duty – a person appointed by the court to administer a decedent’s estate has duties and responsibilities with which they are charged. Failure to properly administer an estate, either by overt act or by omission, can be actionable. Sometimes the remedy sought is removal of the fiduciary.  When funds have been wasted or mismanaged or excessive fees have been taken, the remedy can be a surcharge action.
  5. Removal of Fiduciary – a fiduciary may be removed by the court for cause.
  6. Surcharge Action – the purpose of a surcharge against a fiduciary is to restore the losses sustained by the fiduciary’s breach of duty.
  7. Accounting – beneficiaries have the right to an accounting. If one has not been provided, then a beneficiary may seek the court’s assistance to compel the fiduciary to account for the estate assets. If an accounting has been provided and is objectionable for any reason, then the beneficiary may object to the accounting.

Be prepared today, if you or a loved one is going through probate and is in the need of probate litigation attorneys we can help. Speak with one of the elder law and estate planning attorneys at the law offices of Castiglia-Rubinstein & Associates.

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We are dedicated to your success — so contact us. Speak with one of our knowledgeable Long Island estate planning litigation, will contest litigation attorneys today from wherever you are in New York in Nassau and Suffolk, Brooklyn, Kings and Queens Counties, on Long Island and all New York City boroughs including Bronx, Westchester, Richmond County, and Manhattan.

Call 1-800-960-1529 today.

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Trust vs WillsRemoval of a Trustee * Guardianship * Probate * Beneficiary Rights
In Home Care * Supplemental Needs Trusts  * Fraudulent Transfers * Guardianship Litigation
Medicaid Asset Protection * Probate Litigation * Estate Litigation * Living Trusts

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