What Actually Is Probate?
Probate is a word that people don’t always understand. There is a court in New York called the Surrogate’s Court. The Surrogate’s Court is where matters are brought after a person has passed away. If someone had assets titled in their name at the time of their death, the matter will have to be submitted to probate. If they passed away with a will, then the matter will be called a probate matter, and the person who will be in charge will be called the executor. If they passed away without a will, then the matter will be called an administrative matter and the person who will be in charge will be called the administrator.
If a person passed away with a will, then their assets will be distributed according to what they decided in the will. If they passed away without a will, then their assets will be distributed according to New York statutory law, which defines specifically how people’s assets are distributed based upon what is sometimes referred to as next-of-kin. What that means is that the assets go to a spouse or children. If there is no spouse and no children, then the assets go to the brothers and sisters of the deceased person. If there are no brothers or sisters, then the assets go to the parents of the deceased person. If there are no parents, then the assets go to the aunts and uncles of the deceased person, and so forth.
What Is Probate And Estate Litigation?
The terms “probate litigation” and “estate litigation” are sometimes used synonymously. Litigation that is carried out in the Surrogate’s Court is sometimes called probate litigation and is sometimes called estate litigation. Estate related litigation that is carried on outside of the Surrogate’s Court will usually just be called estate litigation. Litigation occurs when there is a dispute between the distributees or the heirs of the person who passed away. When there’s a dispute as to how the assets should be distributed and that dispute cannot be resolved amicably, the only way to resolve it is through litigation. Sometimes it’s a simple matter. There might be two ways of interpreting a particular distribution, each of which would make a difference financially to the individuals who are having the conflict. The court will decide which way it’s supposed to go. Sometimes it’s a lot more complex. For instance, someone might dispute who should be the executor of the will, even when an executor has already been named in the will. This may happen if someone believes that the named executor is not qualified to be the executor.
There could also be a dispute about whether or not the will is actually a valid will or the most recent will. Sometimes a person creates a second will that no one discovers until later. Sometimes a person creates a will when they don’t have the capacity to do so. Perhaps one of the children or a relative brought them a will to sign that changed the entire distribution scheme and benefitted one person more than another. In those situations, litigation will generally be used to determine which will is valid. There can also be litigation surrounding what the spouse is entitled to. In New York, there’s a law that says a person cannot disinherit their spouse. The spouse is entitled to a minimum of one third of the estate. This means that a person can’t give 100 percent of their assets to their children without permission of their spouse. The spouse has the right to elect to take one third of the estate if they feel that they have not received at least that much. This is called the Right of Election.
There is a way of avoiding having their spouse be entitled to one-third. The Right of Election can be waived through a validly executed prenuptial or postnuptial agreement. The spouses may both agree to waive their right of election with regard to the other spouse’s estate. This often happens when two people get married and have different assets, or when people get married later in life and each have their own children. There are various scenarios in which prenuptial agreements make sense. If someone who gave up the Right of Election tries to claim the Right of Election after their spouse passes away, they might be trying to make the argument that the prenuptial agreement was not valid.
If that argument is made, then state litigation would ensue over whether or not the prenuptial agreement is a valid agreement. If it turns out to be valid, then it will disallow the Right of Election to that spouse. If it turns out to be invalid, then it will allow the Right of Election to that spouse. There could be a lot of money at stake. Some people leave behind millions of dollars when they pass away, so one piece of litigation right there is worth three million dollars. Sometimes there’s a potential distribution between different children and they’re fighting over that. So, a variety of different scenarios would bring about some form of probate or estate litigation.
Akiva Shapiro, A Personal Attorney for Your Life, Business & Legacy
I call myself a personal attorney for your life, business and legacy. This is because I look to get a clear understanding of the client’s entire life from a holistic legal perspective. It’s important to understand where the client is coming from, where they’re headed, where they want to go, what they have and what they want to protect.
It’s about protecting your rights, assets, what you own and what you are entitled to. If an attorney doesn’t understand a client’s overall situation, then they won’t be able to protect their assets or properly represent them. It’s very important to look for an attorney who the client can relate to and feel comfortable with. If a person can find the type of attorney who has the skills to do the job, as well as the individual personal skills, then they are going to be happy with that attorney.
For more information on Probate in New York or Probate Litigation or Estate Litigation on Long Island or Nassau or Suffolk County, a free phone consultation is your next best step. Get the information and legal answers you are seeking by calling (516) 806-0762 today.
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