{Read in 5 Minutes} As a Trusts and Estates attorney, it is very common for me to represent clients who are writing their Wills and with their beneficiaries or also their next-of-kin after they die. Sometimes when I am working with a client in the process of writing their Will, we will have a conversation about whether or not they wish to include or exclude certain potential beneficiaries (and why). Clients may have a variety of reasons for including somebody, either because they feel that it’s the right thing based upon blood relation, or they want to make provisions for their spouse or their children, or perhaps even for close friends who they consider to be family or family-of-choice.
However, the other side of my job involves people who get a notice from the Surrogate’s Court that someone in their circle has died and they may not be entirely pleased with the contents of that person’s Will. This article focuses on that scenario. What happens when you are expecting an inheritance only to find out that no inheritance is forthcoming?
First, it’s helpful to note that just because there is no provision for you in a person’s Will, it does not necessarily mean that you have been completely left out of the overall testamentary plan. For example, a person may leave funds to a beneficiary in several ways. One of those ways is a Will, but it is not the only way. For example, a person may have named you as a beneficiary on a life insurance form, a retirement account, or perhaps opened a joint account for your benefit. In any of these situations, the asset in question could pass to you directly outside of the Estate, and possibly exceed the gross value of anything the Will provides to beneficiaries, according to the terms of the Will. So before you resign yourself to the fact that this person may have disinherited you, do a little legwork and see what’s out there.
If it is the case that the deceased not only excluded you from their Will but also made no other provisions for you, you have the right to investigate and possibly file objections to the probate of the Will.
What does this mean? This means that once you receive a Citation from the Court advising you that the Executor has offered the Will, you have the right to appear in Court (or have an attorney appear for you) and at the outset, begin asking some questions related to due execution of the Will. This means interviewing the attorney who prepared the Will and the witnesses to the document. This will likely take the form of a deposition, where you or your attorney will have the opportunity to ask questions under oath, well in advance of any trial on the validity of the Will.
If, after doing this investigation, you believe that the Court should not probate the Will — for example, if you think that the person lacked the capacity to sign the Will, you can then file verified objections and begin a full trial proceeding. This will mean that you have the opportunity to continue your investigation. While in general, less than 5% of Will contests are ever successful, those parties with sufficient evidence may be able to work out a settlement which may result in what you deem to be a more equitable result.
Finally, it’s incredibly important to remember the context in which any sort of litigation will proceed. Litigation in Surrogate’s Court could cost a party tens of thousands of dollars, depending on how long it proceeds. While parties at the onset feel very strongly about justice and seeing the right thing done, the escalating expense of litigation may be a deterrent from seeing it all the way through. This is something that I try to counsel my litigation clients about at the outset — the cost-benefit analysis of any litigation in relation to the likelihood of success. Even if you decide not to retain an attorney for the litigation process, it may be worth your time to at least have a one-time consultation with somebody to have this discussion. If you have a fantastic case, then by all means proceed. If your chances of recovery are dubious, it’s best to make a financially-minded decision at the early phase, if possible.
For more information on this topic, please contact me.