Long Island Elder Law & Estate Planning

Long Island estate planning attorneys

You likely executed your Last Will and Testament, at least in part, to ensure that your estate assets are distributed according to your wishes after you are gone.  If that Will is invalidated because someone challenges the validity of your Will, however, the State of New York (or your state of residence at the time of your death) will ultimately decide what happens to your assets. Understandably, you want to prevent that from happening. The Long Island estate planning attorneys at Eghrari Law Firm explain what you can do to help prevent someone from challenging your Will.

What Happens When Someone Challenges a Will?

Your estate will likely go through the legal process known as “probate” after your death. Probate ends with the distribution of a decedent’s estate assets; however, before that happens, any challenges to the decedent’s Will must be litigated. If someone does challenge the validity of the Will by filing a Will contest, the probate process basically comes to a halt while the challenge is litigated. If the contestant is successful, the Will is declared invalid, and the state intestate succession laws will be used to probate the estate. If the Will contest is unsuccessful, the probate process continues using the terms of the Will to distribute estate assets.  After going to trouble of executing a Will, no one wants the terms of that Will to effectively be ignored after they are gone.

Grounds for Contesting a Will in New York

Contrary to what many people believe, a Will cannot be challenged based solely on the fact that a beneficiary isn’t happy with the inheritance they received (or didn’t receive) according to the terms of the Will. To succeed in a Will contest in the State of New York, a contestant must prove at least one of the following legal grounds on which the Will can be declared invalid:

  • Lack of testamentary capacity
  • Undue influence
  • Forgery
  • Fraud
  • Improper execution

Preventing a Successful Challenge to Your Will

There is no way to guarantee that your Will won’t be contested; however, there are some steps you can take that will make a successful challenge to the validity of your Will less likely, such as:

  • Do not use a DIY Will form. The DIY route may sound like a great way to save time and money when creating your Will; however, DIY legal documents are typically riddled with ambiguities and errors, making litigation more likely down the road. Working with an experienced attorney gives you the benefit of professional advice and oversight as well as providing another disinterested witness who can testify to your state of mind in the event “lack of testamentary capacity” is alleged in a Will contest.
  • Get a checkup just prior to executing your Will. “Lack of testamentary capacity” is a common basis for a Will contest. A good tactic for heading off such a claim is to get a complete physical done within days of executing your Will.
  • Leave behind a Letter of Instruction.  This is a letter that is written by you explaining anything not already covered elsewhere in your estate plan. You can use this option to explain controversial bequests that might lead to a Will contest.
  • Include a “no contest” clause in your Will. A “no contest” clause is a provision in a Will that effectively disinherits anyone who tries to contest the Will. State laws vary regarding how they approach no contest clauses. Governed by The Laws of New York § 3-3.5, the State of New York does enforce no contest clauses.
  • Avoid gifting in your Will. Assets gifted in your Will must go through probate whereas non-probate assets bypass probate altogether. Converting assets to non-probate assets, when possible, therefore, only makes sense. Common examples of non-probate assets include trust assets, proceeds of a life insurance policy, certain types of jointly held property, and funds held in a “payable on death (POD)” account.

Contact Long Island Estate Planning Attorneys

For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns regarding how to prevent someone from challenging your Will, contact the Long Island estate planning attorneys at Eghrari Law Firm by calling us at 631-265-0599 to schedule your appointment.

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About Eghrari Law Firm

Mark S. Eghrari is an attorney in private practice in Smithtown, New York. He has been in practice since 1988. Mark S. Eghrari provides extensive estate and tax planning services to individuals and businesses. Mr. Eghrari’s primary focus is helping clients avoid probate, minimize or eliminate Federal and State Estate taxes and protect their assets from the high cost of nursing care, if they become ill Read More!