Creating an estate plan, whether that includes a will, trust, power of attorney, or a combination of these essential documents, can be daunting. Once it’s completed, some may assume that nothing else needs to happen. However, that is not typically the case.
If an estate plan only includes a will, it is recommended to let heirs, whether they were named in the will or not, know of your wishes. This is because a will must go through the probate court, and heirs who are not named in a will but are legally entitled to assets may have the opportunity to contest the will.
Who Are My Heirs?
According to New York’s intestate laws, an heir is typically a family member — whether that be a spouse, descendants, or a sibling, depending on someone’s family history. Other than the right of election of a surviving spouse to at least one-third of the decedent's estate, there is no law stating that someone is required to leave their assets to a family member if they don’t want to. However, a legal heir could have the right to contest a will in probate if they believe they should have rightful ownership of an asset.
How Can a Will Be Contested?
A will can be contested if someone believes they have legal grounds to do so. Legal grounds could consist of someone feeling:
- They are the rightful owner of an asset;
- That the will was created when the testator (the person who created the will) did not have the mental capacity to do so; or,
- The will was created under undue influence.
How Can This Be Avoided?
If someone is adamant about leaving their assets to others who, under ordinary circumstances, would most likely not be given those assets, then a trust may be the best course of action. When executing a trust, not only does the probate court not get involved but those who believe they were rightful heirs do not need to be notified about the testator’s passing. This benefits testators who do not have ties with their immediate family members or are not treating them equally.
Whether you are interested in creating a will, a trust, or any other type of estate plan, the team at the Law Offices of Steven M. Adler, PLLC is here for you. Contact one of our dedicated attorneys for the answers to your questions and to set up a consultation. (516) 740-1184