Being left out of your parent’s will is a difficult pill to swallow. People are free to dispose of their property through a will as they see fit. Only spouses have some statutory protection against being cut-off from the other spouse’s will. If you are the child that has been cut-off from a parent’s will, what should you do? There are time sensitive steps you should take to understand what has happened, and if possible, contest the will. Note, that only family has the power to contest a will.
Obtain a copy of the will
The deceased person or testator who created the will has the final say on who gets what of his or her property. If the will has changed, it could be perfectly legitimate or have been done under duress or diminished mental capacity. The executor will be able to provide you with any previous versions of the will and a list of assets. If you cannot obtain a copy of the will before it enters probate, you are able to receive a copy from the probate or surrogate’s court.
Is it worth the legal fight?
Contesting a will is expensive. Carefully weigh the potential reward to the actual cost. If you think a will contest will cost $5,000, budget $15,000 and determine if the fight makes financial sense. If the gift is $10,000, you’ll end up with a legal bill and no money. An estate lawyer can tell you under what circumstances a will can be challenged and how your circumstances would be interpreted by the courts and laws in New York. You must consider the value of the claim over its costs and be comfortable with the loss of attorney’s fees and court costs, which are separate and apart from the lawyer’s fee.
Contest the will in court
If you have grounds to challenge the will, your lawyer will file a will contest petition with the Surrogate’s Court, the court in New York State that is authorized to hear such cases and decide the outcome of challenges to wills. The objective of a will contest is to invalidate the current will and enforce a previous will that listed you as a beneficiary. If the current will is invalidated, and there is no other will, disposition of the decedent’s estate will be made according to New York State’s intestacy laws. Intestacy is the process of disposing of a decedent’s assets when they die without a will. The burden of proof, to demonstrate that a current will is invalid, is on the challenger of the will.
Consider alternative means to resolve a will contest
The affected parties can consent to mediation to resolve in a dispute involving a will content. Mediation is a method parties can utilize to resolve a dispute out of court by having a mediator, a neutral third party, help the parties reach a consensus on a settlement that dramatically decreases the attorney’s fees and costs involving with challenging a will. Make sure you discuss mediation with an estate planning lawyer to understand if the option is available to you.