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Litigating/Contesting a Last Will and Testament offered for probate in New York

Litigation concerning the validity of a Last Will and Testament offered for probate is very common in New York. These legal proceedings, commonly referred to as “Will Contests”, frequently occur when a Will is offered for probate and the Will either specifically disinherits certain family members or fails to name certain family members as beneficiaries of the Will, which failure to name certain family members as beneficiaries of the Will is the same as specifically disinheriting these family members.

Offering a Last Will and Testament for probate in New York which disinherits certain family member is a high-stakes legal proceeding – Not only are the feelings of the disinherited family member hurt by not being included as a beneficiary of the Will, despite being a close family member of the deceased person and, perhaps, despite having a close, loving relationship with the deceased person, and not only do the disinherited family members stand to lose a sizable inheritance, but, as the population of New York ages, there are frequently concerns regarding the capacity of the person who executed the Will, especially when this person had dementia or general confusion. Add to this the prevalence of second and third marriages, blended families, and the increase in wealth transfers from one generation to the next, and you have the perfect storm for increased Will Contests and litigation concerning the validity of Wills offered for probate in New York.

Both offering a Last Will and Testament for probate which disinherits certain family members and proceeding to contest the validity of such offending Will requires careful consideration and investigation. While the person offering a Will for probate is not typically tasked, at the outset, with confirming and producing evidence that the person who executed the Will had the required, legal capacity to execute a valid Last Will and Testament and executed the Will in conformity with the laws of the State New York, those who intend to contest a Last Will and Testament should immediately do all within their power to investigate all issues surrounding the creation and execution of the Will to determine if the Will was properly executed, to determine if the person who executed the Will had the required, legal capacity to execute the Will, and to determine if someone unduly influenced the person creating and executing the Will and caused the person creating and executing the Will to exclude certain family members for the benefit of the person exerting undue influence.

Fortunately for those who are disinherited, the probate laws of the State of New York provide a procedure that ensures all persons who would receive an inheritance in the absence of the offending Will are notified that the offending Will was filed with the Court, offered for probate and are given an opportunity to inform the Court that they would like an opportunity to investigate all the facts and circumstances surrounding the creation and execution of the offending Will before such disinherited person is required to formally file objections to the Will and proceed with further litigation concerning the validity of the offending Last Will and Testament. When a disinherited persons informs the Court that he/she would like to investigate the creation and execution of an offending Will offered for probate, which is called a “1404 request”, the disinherited person will be allowed an opportunity to obtain documents related to the creation and execution of the Will, will be allowed to obtain medical records from the deceased person’s doctors and medical professionals to determine if the person who created and executed the offending Will had the required, legal capacity to execute the Will, and will be allowed to depose, under oath, the attorney who prepared the offending Will, the two attesting witness who signed the Will, and, in some instances, the sworn deposition testimony of the person who offered the Will for probate.

It is important to note that these “1404 requests”, the obtaining of documents as part of the “1404 request”, and deposing the attorney who prepared the will, the two attesting witness who signed the Will, and, in some instances, the person who offered the Will for probate as part of the “1404 request” are allowed in nearly all instances when a Last Will and Testament is offered for probate that excludes certain family members.

The purpose of these “1404 requests”, which occur at the outset of any litigation concerning the validity of a Last Will and Testament offered for probate, is to allow the disinherited person to discovery, rather quickly, whether they have legal grounds to contest the validity of the Will offered for probate. Furthermore, because the purpose of the “1404 request” is to investigate the facts and circumstances surrounding the creation and execution of the Will, the documents obtained and the deposition testimony elicited during the “1404 request” is often the most crucial evidence concerning the validity of the Last Will and Testament.

When a Last Will and Testament is offered for probate which disinherits certain family members, both the persons offering the Will for probate and the disinherited person or persons would be well advised to seek the advice of an attorney well versed in Will Contests and litigation concerning the validity of Last Wills and Testaments. Will Contests are very complicated legal proceedings and, because the “1404 request” must be made at the outset of any litigation concerning the validity of an offending Last Will and Testament, retaining an experienced Estate Litigation Attorney should be done as quickly as possible to ensure your legal rights are protected.

Forcing an Executor/Administrator/Trustee to Account in New York

When a beneficiary of deceased person’s Last Will and Testament, a deceased person’s Estate or a deceased person’s Trust believe that the Executor of the Will, the Administrator of the Estate or the Trustee of the Trust have either refused to provide the beneficiary with information concerning the administration of the Last Will and Testament, Estate or Trust or have done something improper as the Executor, Administrator or Trustee, the beneficiary has the right to require the Executor, Administrator or Trustee to account to the beneficiary for all actions taken by the Executor, Administrator or Trustee. While these types of legal proceedings, commonly called “Accounting Proceedings”, are not as common as Will Contest, forcing an Executor, Administrator or Trustee to account is not uncommon, and Accounting Proceedings provide an important legal remedy to a beneficiary who was either kept in the dark or harmed by the actions of an Executor, Administrator or Trustee.

Prior to filing a petition in the Surrogate’s Court, seeking an order of the Court requiring the Executor, Administrator or Trustee to account, a beneficiary should always request that the Executor, Administrator or Trustee provide an informal accounting to the beneficiary and detail all actions undertaken by the Executor, Administrator or Trustee. Such informal accounting, if provided, should contain a sufficient amount of information to allow the beneficiary to determine whether the Last Will and Testament, Estate or Trust were properly administered by the Executor, Administrator or Trustee, and should be supported by bank, brokerage and other statements, as well as copies of canceled checks, which are needed to allow the beneficiary to determine if the Executor, Administrator or Trustee has acted properly or improperly.

If an Executor, Administrator or Trustee either refuses to provide an informal accounting to a beneficiary of a Last Will and Testament, Estate or Trust or if the informal accounting provided tends to show that the Executor, Administrator or Trustee has acted improperly, the beneficiary should file a petition in Surrogate’s Court and ask the Court to order the Executor, Administrator or Trustee to account to the beneficiary.

With informal accountings, after providing the informal accounting, the Executor, Administrator or Trustee will typically ask the beneficiary to approve the informal accounting and provide the Executor, Administrator or Trustee with document called a “Receipt, Release and Refunding Agreement.” The purpose of the “Receipt, Release and Refunding Agreement” is to provide the Executor, Administrator or Trustee with a formal approval by the beneficiary of the accounting provided and for the Executor, Administrator or Trustee to obtain the consent and release of the beneficiary for all actions and proposed distributions recited in the accounting.

An Executor, Administrator or Trustee should always provide an informal accounting to a beneficiary of a Last Will and Testament, Estate or Trust, and should always ask the beneficiary, after reviewing and approving the informal accounting provided, to provide the Executor, Administrator or Trustee with a “Receipt, Release and Refunding Agreement”, as the “Receipt, Release and Refunding Agreement” provided the Executor, Administrator or Trustee with assurances that the beneficiary will not seek further legal action against the Executor, Administrator or Trustee for the Executor, Administrator or Trustee’s administration of the Last Will and Testament, Estate or Trust.

Besides the above-noted benefits to an Executor, Administrator or Trustee providing an informal accounting and receiving the beneficiary’s approval and release of the Executor, Administrator or Trustee, through the beneficiary’s return of a fully executed “Receipt, Release and Refunding Agreement”, the costs and expenses of filing a formal, judicial accounting with the Surrogate’s Court to settle the Executor, Administrator or Trustee’s accounting are substantial and subject to review and approval of the Surrogate’s Court.

If it becomes necessary to file a petition with Surrogate’s court seeking an order of the Court requiring the Executor, Administrator or Trustee to account to the beneficiary, due to the Executor, Administrator or Trustee’s failure to either provide the beneficiary with an informal accounting or the Executor, Administrator or Trustee’s failure to properly administer the Last Will and Testament, Estate or Trust, as shown in the informal accounting, the beneficiary can rest assured, in nearly all circumstances, that the Surrogate’s Court will issue an order requiring the Executor, Administrator or Trustee to account. The Surrogate’s Court where the Last Will and Testament was admitted to probate, the Administrator was appointed or the Trustee was appointed retains jurisdiction over the Last Will and Testament, Estate or Trust, as well as the Executor, Administrator or Trustee of such Last Will and Testament, Estate or Trust, and the Surrogate’s Court has the authority to ensure the Last Will and Testament, Estate or Trust was properly administered by the Executor, Administrator or Trustee. The Surrogate, or Judge of the Surrogate’s Court, takes very seriously any allegations of mismanagement of the Last Will and Testament, Estate or Trust subject to the Court’s jurisdiction and has the power to remove, suspend and issue a monetary judgment against any Executor, Administrator or Trustee who has acted improperly.

In a nutshell, the legal responsibilities of an Executor are as follows:

  • The Executor must collect all assets of the deceased person which are subject to administration by the Executor;
  • The Executor must then pay all known debts of the deceased person, reimburse all persons who have paid the funeral expenses of the deceased person, and must pay all expenses incurred by the Executor in administering the Last Will and Testament, which typically include court costs and court filing fees, attorneys’ fees, and other expenses associated with administering the estate, such as purchasing an estate checkbook; and
  • After all assets of the deceased persons have been collected and the above-noted expenses have been paid, the Executor then must distribute assets subject to the Executor’s control to the beneficiaries of the Last Will and Testament, in accordance with the express terms of the Last Will and Testament.

In a nutshell, the legal responsibilities of an Administrator are as follows:

  • The Administrator must collect all assets of the deceased person which are subject to administration by the Administrator;
  • The Administrator must then pay all known debts of the deceased person, reimburse all persons who have paid the funeral expenses of the deceased person, and must pay all expenses and legal fees incurred by the Administrator in administering the Estate; and
  • After all assets of the deceased persons have been collected and the above-noted expenses have been paid, the Administrator then must distribute assets subject to the Administrator’s control to the “distributes” of the deceased person, in accordance with the laws of the State of New York.

In a nutshell, the legal responsibilities of a Trustee are as follows:

  • The Trustee must collect and properly administer all assets of the Trust, as provided by the express terms of the Trust and in accordance with the laws of the State of New York;
  • The Trustee must pay all debts of the Trust and must pay all expenses and legal fees incurred by the Trustee in administering the Trust; and
  • After the above-noted tasks are complete, the Trustee must then distribute the Trust assets to the beneficiaries of the Trust, in accordance with the express terms of the Trust and in accordance with the laws of the State of New York.

Whether an Executor, Administrator or Trustee is preparing an informal accounting or formal, judicial accounting to provide to beneficiaries of a Last Will and Testament, Estate or Trust, such Executor, Administrator or Trustee is well advised to seek the guidance of an experienced Trusts and Estates attorney in preparing the accounting. Likewise, the beneficiary of a Last Will and Testament, Estate or Trust, whether or not the beneficiary has received and accounting of the Executor, Administrator or Trustee or has not received an accounting of the Executor, Administrator or Trustee, despite demanding one, would be well advised to seek the guidance of an experienced Trusts and Estates attorney who is familiar with the requirements of Accounting Proceedings in New York.

Removing an Executor/Administrator/Trustee in New York

Efforts, and proceedings, to remove an Executor, Administrator or Trustee are not uncommon in New York. These types of proceedings, commonly referred to as “Removal Proceedings”, are necessary when it can be shown that an Executor, Administrator or Trustee has done something wrong in administering a Last Will and Testament, Estate or Trust or when the Executor, Administrator or Trustee has refused to account to a beneficiary of a Last Will and Testament, Estate or Trust despite being ordered to do so by the Surrogate’s Court. Executors, Administrators and Trustees are not commonly removed for making innocent, ill-advised decision; rather, the actions of the Executor, Administrator or Trustee must be so egregious that the Court cannot condone and allow the Executor, Administrator or Trustee to continue to act and administer the Last Will and Testament, Estate or Trust. Common examples of wrongdoing which can result in the removal of an Executor, Administrator or Trustee are: (1) the Executor, Administrator or Trustee has completely abandoned their administration of the Last Will and Testament, Estate or Trust for a prolonged period of time without a reasonable excuse for having done so, (2) the Executor, Administrator or Trustee engaged in self-dealing by distributing assets of the Last Will and Testament, Estate or Trust to themselves without justification for having done so and (3) the Executor, Administrator or Trustee has refused to comply with an order of the Surrogate’s Court requiring the Executor, Administrator or Trustee to account.

Most Removal Proceedings are commenced after the Executor, Administrator or Trustee has accounted to the beneficiary of a Last Will and Testament, Estate or Trust, whether informally or in a formal, judicial Accounting Proceeding, and when such accounting demonstrates that the Executor, Administrator or Trustee is no longer fit to administer the Last Will and Testament, Estate or Trust. The reason for this: the beneficiaries of the Last Will and Testament, Estate or Trust do not typically have the required facts and documents to know whether an Executor, Administrator or Trustee has engaged in egregious wrongdoing, warranting the removal the of the Executor, Administrator or Trustee, until the accounting is provided and demonstrates that the Executor, Administrator or Trustee has mismanaged the Last Will and Testament, Estate or Trust.

For more information on Estate Litigation, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (516) 888-5381 today.

C. Haner Law

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(516) 888-5381

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