Courtesy of The Law Firm of Daniel J. Reiter, Esq.
If you’ve been left out of a will, you may have rights. Certain people are allowed to contest, or object, to a will’s validity, per New York law.
“Probate” is the process of proving to a court that a will is valid. In New York, the universe of potential objectants to “probate” of a will is limited, meaning not just anyone can object. Per New York statute and case law, the general rule is that the following people can object to a will’s validity to protect their inheritance.
1. Someone can object if they are a person who would inherit if there were no will and they have some sort of financial or property interest in the estate. In legal jargon, we call this an “intestate distributee” with a “pecuniary interest”. An intestate distibutee is someone who would inherit from the estate if there were no will. A New York statute governs who inherits from the estate if the person who died did not make a will or if a “will” was made, but is knocked out in a will contest. However, a person who gets nothing or less in “intestacy” than under the will cannot object because they have no “pecuniary” interest (or financial or property interest).
2. A “non-distributee”, who is someone who wouldn’t inherit if there were no will (like a friend), can object if they were a beneficiary under an earlier revoked will and are disinherited or receive less by the later will offered for probate.
3. Someone named executor in an earlier will can object, with the court’s permission. (cosmolex.com)
Let’s explore each category in more detail.
An Intestate Distributee with a Pecuniary Interest
An “intestate distibutee” is someone who would inherit from the estate if there were no will. Estates, Powers and Trusts Law § 4-1.1 governs who inherits from the estate if the person who died did not make a will or if a “will” was made, but is knocked out in a will contest.
The statute states that if the person who died, known as a “decedent”, was survived by a spouse and children, the spouse and kids share in the estate pursuant to the statutory formula. If the decedent died with no spouse, but living children, the decedent’s children generally share the inheritance. If the person died with no spouse, no children and no grandchildren, but the deceased person’s parents are alive, the parents inherit. This goes on and on until remote cousins make the list, but at no point does the State of New York ever inherit (called escheat), contrary to popular belief.
The intestate distributee must have a “pecuniary interest”, which means they must have a financial interest in the estate.
Example: Doug is single and has no children. His closest living relatives are his brother, Mike, and his sister, Nancy. If Doug were to die “intestate”, meaning, he died without a Will, Mike and Nancy would inherit equal shares of his estate. Doug makes a will naming his brother Mike as the sole beneficiary. Nancy is outraged. She calls Doug’s best friend, Tony, to tell him about the fiasco. Tony is outraged too, but not by Nancy’s misfortune. Tony believes he should have been named a beneficiary in the will. Nancy and Tony go to court and object to the will. Nancy has standing, meaning, she can legally object, but Tony does not. The Judge does not entertain Tony’s objections to probate, and Tony’s objections are quickly dismissed for lack of standing. In other words, Tony does not fall into the category of people allowed to object to the will. But Nancy does.
A Person Who Gets Nothing or Less in Intestacy
The objectant must either (a) receive no money or property if the will were admitted to probate or (b) less money or property if the will were admitted to probate than the objectant would if the will were denied probate. If the person were to receive more money or property if the will were knocked out, or would get the same inheritance if the will were knocked out, then they cannot object.
Example: Keisha is a widow. Her closest living relatives are her two daughters, Tanisa and Lauren. Pursuant to New York Law, if Keisha never made a will (she dies “intestate”), then Tanisa and Lauren would each inherit 50% of their mother’s estate. Keisha makes a will in 2010 naming Tanisa as the only beneficiary. When Tanisa goes to probate the will with the Surrogate’s Court, Lauren can object.
Non-Distributee Who Was Named in an Earlier Will
A non-distributee can object where they were a beneficiary under an earlier will and are disinherited or receive less by the new will offered for probate. In other words, a person who would not inherit under intestacy can object to probate if they were a beneficiary under and earlier will and receive a smaller inheritance under the will offered for probate.
Example: Sam makes a will in 2010 naming his best friend, Zack, as a beneficiary. Sam makes a new will in 2015 with the exact same provisions as the old will, except Zack is not included as a beneficiary. Sam dies. Sam’s sister, Lucy, offers the 2015 will for probate. Zack has standing to object to the 2015 will.
A Named Executor Can Object, Sometimes, with the Court’s Permission
If someone is named executor (or a trustee) in an earlier will, and they are not named executor in the new will, they can object to probate if (a) the court allows it “for good cause shown” and (b) if the executor won’t be receiving commissions they would otherwise have been entitled to under the previous will.
Commissions are the payment a fiduciary, such as an executor, receives for the services they render to the estate.
If you have questions about a will you believe is invalid or wish to object to probate of a will, our firm can be reached at 646-820-4011 and djr@djrattorney.com.
This article is intended for educational and marketing purposes. It should not be construed as legal advice. Every case presents its own unique facts and circumstances, and every client has their own individual needs.
Law Firm of Daniel J. Reiter, Esq. 30 Wall Street, 8th FloorNew York, New York 10005 Phone: (646) 820-4011 Fax: (646) 774-0426 Email: djr@djrattorney.com