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Probate Court 101: What You Need to Know

A probate court oversees the distribution of assets when a person dies (called a decedent in legal terms). It adjudicates a will’s validity, enforces will provisions, and also handles the distribution of property when someone dies intestate—or without a valid will.

When a will is contested, the matter is also resolved in probate court. The court examines the will, determines its authenticity, and decides how the property will be distributed. When a beneficiary believes an estate is being mishandled by executors, he or she can also bring the case to probate court.

If you are drawing up a will, will be named as an executor, or have a loved one who recently died, here are a few things you should know about probate court.

If I have to contest a will, what’s the first thing I should do?

Judge

You can also prevent contestations in court after you die by talking to your beneficiaries when you draw up the will.

 

Talk to a lawyer,” says Jeffrey A. Asher, a partner with Eaton & Van Winkle LLP*. “Make sure you are reading the language of the will correctly and in the right context.  You don’t want to start a will contest simply because you misunderstood what the will actually says. Make sure the attorney agrees with the way you’re reading the will." It’s not unusual for some beneficiaries to misread the terms of the will and bring up the discussion with other family members or the probate court based on a misunderstanding. This can cause needless upheaval and damage family relationships—and can be easily prevented by speaking to a lawyer. Most lawyers will provide initial consultations of this type at no charge, and can tell you realistically whether the issue has a chance of winning in court.

What types of cases are most likely to lose when a will is contested?

Will contestation cases are complicated—and it’s difficult to say which particular cases are likely to win or lose in general terms. There are a few misconceptions about what will work and what won’t, though, that are worth addressing.

“Any time a person’s reason for contesting the will is because the person was on medication, proving the lack of mental capacity may be difficult,” says Asher. “If there is no other reason to contest the will except for the claim that the person lacked mental capacity when the will was drawn up, being on medication alone is usually not enough to win.”

In New York, a person is judged to have the mental capacity to create a will if they understand which assets they have in a general sense, and they know who their natural objects are. Natural objects is a term used to refer to the natural beneficiaries of a will—children, spouses, and other relatives.

Contestation often occurs when one natural object—a son or daughter, say—is left out of a will, with no explanation given. While this can be devastating for the excluded person, there are often rational reasons why this happened—perhaps the excluded person has a sibling who provided most of the caregiving in the parent’s final year, or the parent believed another sibling needed the money more. If the parent knew who their natural objects were when drawing up the will, the case will be much more difficult for the excluded party to win.

If, however, the parent had dementia and was not aware of the excluded party’s existence—and never mentioned the person to the attorney who drew up the will, for example—then the excluded party would have a stronger case for challenging the will based on lack of mental capacity.

What happens if a will leaves some property undistributed?

If some instruction or provision is left out of the will or if the will leaves any holes, you have to resort to state law,” says Asher. “If there’s a hole in the will, the probate court will distribute everything that’s been provided for, and then rely on administration statutes to govern what happens to the rest.”

There are other things that could go wrong as well—and that may also be governed by state law in that case. For example, the person named as executor could refuse the job. If the will doesn’t name a runner-up, state law will determine what to do next. In addition, some distributions are illegal—and if your will distributes some assets in a way that goes against state law, the probate court will refer to legal statutes and regulations to determine the outcome.

What can I do to prevent conflicts when writing my own will?

“Go to a qualified attorney,” says Asher. “Don’t believe that just any attorney can draw up a will—wills fail because people hire attorneys who don’t have any legal experience in that area. That creates more problems than it solves.”

If you really want to prevent conflicts in probate court, choose an attorney who specializes in wills. Make sure you read the will, as well—and that it’s true to your intentions. Check for ambiguities, errors, and inconsistencies.

You can also prevent contestations in court after you die by talking to your beneficiaries when you draw up the will. If there are inequalities in the way things are distributed, explain them up front. You may have to deal with the conflict in person—but it will prevent worse hurt feelings and damaged relationships among your family members later if these provisions are not a surprise.