Estate & Trust Challenges
Challenging a Will
Have you been disinherited by your parent under a new will being offered by a sibling for probate? Would you be in line to get an inheritance if there was no will being offered for probate? For instance, what if your spinster aunt, left everything to another niece or nephew and excluded you? Can you challenge the will that does this? One of the first hurdles a proponent of the Will of the decedent may face is a challenge to the document itself. The proponent, usually the nominated executor, seeks to have the will admitted to probate before the Surrogate’s Court. If no one objects, the Will is admitted, and the nominated executor is appointed by the Surrogate’s Court as the executor. Very few wills are challenged or successfully challenged.
So why do it?
Because, in those rare instances, the document or the execution of the document was flawed and someone who would be a beneficiary under a prior will or a distributee if there was no will, has the chance of getting a part of the estate that was theirs but for the will being presented for probate. Wills must be executed pursuant to a specific set of rules and if it is not, may be challenged successfully. Further, the rules that govern the admission of a will for probate allows the deposition of the witnesses to the will, the attorney who drafted the will, and the nominated executor. With this right, you can get evidence that may make pursuing a challenge worthwhile.
Challenging the Appointment of a Executor or Administrator
You may only want to challenge the nominated executor and not the Will itself, or the appointment of an administrator if there is no Will. Sometimes, the person seeking to be appointed as either the executor or administrator is not qualified to act in that capacity. For instance, a felon or a nondomiciliary alien cannot act as an executor or administrator. If you believe that a nominated executor or the proposed administrator may not be qualified, it may be to your advantage to challenge that appointment and have a third party, you or the public administrator appointed.
After a Will has been admitted to probate, or a trust has been created, a beneficiary has a right to know what is happening to the assets. A fiduciary has the duty to account. This duty usually does not occur until after a period of time, and any premature call for an account with the court will likely have the petition to account dismissed. However, once that period of time has passed and the fiduciary fails to provide a timely account, whether it be informal or formal, a beneficiary may petition the court to have an account filed. Once an account is provided, a beneficiary has the right to challenge the account. While an account may have mistakes in it, unless there are significant errors, you should consider the cost of challenging an account. Some of the issues that make an account challenge worth while are missing assets, significant losses in value of those assets where the fiduciary had control of the assets, distributions not made pursuant to the terms of the governing document Unless your attorney also has financial experience, you may need both an attorney and an accountant to analyze an account to determine if there is sufficient cause to make the challenge.
Contact the Rothenberg Law Offices, PLLC
If you have recently lost someone, now is the time to contact a law firm to explain and help you handle the complicated process for administrating the estate. At the Rothenberg Law Offices, we have over thirty years of experience helping families settle the estates of loved ones. We will explain the difference between the types of administrations and which applies to your families situation. Sometimes, we can show the family how to avoid probate or administration. Call for a free 30-minute consultation to learn the best direction to approach handling the estate.