Category Archives: Wills

The Decedent’s Last Will: A Final Profound Statement

Introduction.    A will is a written declaration providing for the transfer of property at death. Although having legal significance during life, the will is without legal force until it “speaks” at death. Upon the death of the decedent, rights of … Continue reading

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Defeating a Will Contest

Without a Will, one’s property passes by the laws of intestacy. “Distributees” (i.e., those who would take under intestacy) have a right to be “cited” by the Surrogate’s Court prior to a Will’s admission to probate. For example, children of a decedent whose Will leaves everything to the wife must be cited, or waive citation, since as distributees they would be entitled to nearly half the estate if the decedent died without a will. Continue reading

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AVOIDING CHALLENGES TO TESTAMENTARY INSTRUMENTS

Protracted legal proceedings by disgruntled descendants and relatives asserting lack of testamentary capacity or undue influence deplete the estate and delay distribution. Therefore, steps taken by the testator before death which minimize the possibility of later challenge are essential. Although somewhat surprising, the mere choice of who witnesses the will execution may later determine the success of a will contest. Favorable testimony given by attesting witnesses at an SCPA § 1404 deposition may facilitate the admission of the instrument into probate, or at least force a favorable settlement. Continue reading

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Validity, Interpretation & Effect of Wills Having Jurisdiction Outside of New York

PDF: Wills Having Jurisdiction Outside NYS The burden of proof that a will was executed in accordance with formal requirements imposed by EPTL § 3-2.1 is on the will’s proponent, who may be the executor, a beneficiary, or an interested … Continue reading

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Will May be Preferable to “Living Trust”

As a testamentary instrument, the living trust may be attractive for some elderly testators. For younger persons however, a Will is generally preferable. Despite statements to the contrary, a living trust is possessed of no inherent tax benefits. Furthermore, few, … Continue reading

Posted in Inter Vivos Trusts, Probate & Administration, Trusts, Wills