For most New Yorkers, having a Last Will and Testament is ubiquitous. As one ages, it is not unusual for the topic of a conversation to be whether one has signed their Last Will. Unfortunately, what is often missing from the conversation is that a Last Will only controls assets held by an individual in his or her name alone at the time of his or her death (not jointly held assets or assets with named beneficiaries), and that for the Last Will to be effective as to those assets, it must admitted to Probate in the Surrogate's Court of the County where the decedent resided.
As it becomes more and more apparent that we are living in an increasingly dangerous world, one of the most difficult and often contentious decisions parents of minor children will need to make is who will be the standby guardian(s) of their minor children in the event of their demise. While the possibility of that occurring is not something one wants to dwell upon, it is an important issue that parents need address.
One question I am often asked is how to contest (or challenge) a last will & testament. While challenging a last will is not something to be done lightly, there are specific instances in which a will contest would be appropriate. In order for a last will to be deemed valid and legally enforceable in New York State, it must first be admitted into probate by the Surrogate's Court where the deceased resided. Once this process begins, individuals with a pecuniary interest (those who stand benefit monetarily from the last will) have the opportunity to formally challenge the document's validity. This includes named beneficiaries in a previous will and/or heirs at law. Once it has been established that an individual does have a pecuniary interest, he or she may formally challenge the last will by filing an objection with the Surrogate's Court. In New York, the grounds for objecting to the admission of the last will & testament to probate are:
One question I am often asked is the difference between a Last Will & Testament and a Revocable Living Trust. While many simply default to a Last Will as their primary estate planning document, the Revocable Living Trust has been gaining significantly in popularity over the past several years. Here are the basics on both: