{Read in 3 Minutes} As a Trusts and Estates attorney, I frequently represent people who have interests in Estates, whether it’s Executors, Administrators, creditors, or beneficiaries. We often get involved with all facets of an Estate.
Sometimes I am contacted by the next-of-kin of the recently deceased — or, as we say in the law, “the distributees” — of the deceased. These people all are entitled to a notice of the probate proceeding at the Surrogates Court and the option to challenge the Will if they choose to do so. However, they are not the only people with standing to challenge a Will, hence this article.
In addition to the distributees, any beneficiary who was listed as a beneficiary under a prior Will (and has been disinherited by a later Will) may also have standing to challenge. For example, let’s say that I have chosen to leave a cash sum to my best friend in a Will that I wrote 20 years ago. I have recently died. (This is just an example. I’m not writing this article from beyond the grave!) If I’ve recently died, and my best friend learns that I wrote a newer Will that disinherits them, they also can challenge the Will. If the Court is aware of the prior Will, my best friend would receive a Citation that gives them a date certain by which they should appear in the proceeding, and decide whether they want to conduct 1404 examinations or file objections to probate.
Note: For this to work, the Court has to be aware of the existence of a prior Will. If the Court is not so aware, the beneficiary of the prior Will may not receive a Citation. Therefore, it is important for people and organizations who knew that they were beneficiaries of a loved one’s Will, at some point, to keep this on their radar. Anything filed in the record room is generally public record, and the vast majority of the New York Surrogate’s Courts (each of 62 counties has one) are available online via New York’s online Surrogate’s Court search tool, WebSurrogate.
These beneficiaries should check periodically to see whether or not the Court has an open Estate for their deceased loved one. If they do, the probate petition should list them as the beneficiary of a prior Will. If the probate petition does not list them, they should act quickly and file the former Original Will or at least a photocopy. Timing is key because you want to avoid a situation where the Court, not knowing about this prior Will, probates the newer Will without any notice to the beneficiary. It is possible to vacate the probate Decree later, but it is significantly more difficult and costly.
If the beneficiary does get this notice, they can make any objections they would like, if appropriate, including lack of testamentary capacity, undue influence, or improper execution. For more information on this topic, please, contact me.