Being left out of a will can come as a shock. People are often left feeling powerless and confused when they learn that they have been disinherited improperly. So what are the rights of someone who has been disinherited? After having represented many people in that situation, I will attempt to discuss the steps in protecting one’s rights in the event of a disinheritance. This article assumes that the party being disinherited has legitimate concerns about the validity of the will.
Am I Really Disinherited?
The first step in the process is to determine if you, are in fact, disinherited. For example, when Steve Jobs died, I was not left anything in his will. That doesn’t mean that I was disinherited, and me being upset about it doesn’t give me the right to do anything. That brings us to Rule #1 of protecting your rights which is “You must have rights”. What gives one the right to sue? Generally speaking, if you are the next of kin (known as a distributee), you have the right to challenge a will. For example, as we discussed in our article on intestacy, if you are a spouse or a child of the decedent, you are considered the next of kin and having standing, meaning the right, to challenge a will. If the decedent died without a spouse or children, then his parents are the next of kin and his siblings have no standing to sue.
Another common class of people who have the right to sue are beneficiaries named in prior or subsequent wills, even if they are not family members. If the prior will is filed in court, beneficiaries who are left out of the current will can bring a challenge to it. If you are in possession of the prior or subsequent will, you should file it. If you know of the existence of a will but are not in possession of it, there are ways to compel its production and filing.
I Have Rights – Now What?
Many times, disinherited parties are sent a copy of the will along with a document entitled “Waiver of Process; Consent to Probate” asking you to consent to the probate of the will. It should go without saying that if you intend on fighting the will, you should NOT sign this document. Instead, you should immediately contact a probate attorney to discuss the next steps.
If you do not receive the document asking you to consent to probate, and you are in fact entitled to contest the last will of a decedent, rest assured that you must be given notice of the probate through the issuance of a probate citation. The citation gives you the opportunity to appear in court, usually through a probate attorney, to argue your case. It has the location of the Surrogate’s court as well as the time and date of when you are to appear. The citation can be served upon you in various ways. If you live in New York, you must be served personally. If you live outside of New York, it can be sent to you through certified mail, Fedex, or a similar service. If you cannot be served personally in the state, the law also allows the petitioner to serve you through alternate means, which are outside the scope of this article.
Once you receive the citation, make sure to mark your calendar and speak to your attorney to make sure you have representation on that date. It is not recommended to attempt to fight a will on your own since the process is highly technical and should not be undertaken without an experienced probate attorney.
The first opportunity to make your voice heard is on the return date listed on the citation. By that point, all of the parties should have been served and the court will ask whether anyone objects to the probate of the will. On that date, your attorney will generally request and schedule 1404 examinations which allow him or her to interview the attorney who drafted the will along with two of the witnesses to the will. In addition, he will be able to request medical and financial records, along with other relevant documentation, to help understand the circumstances surrounding the drafting and execution of the will.
Contesting the Will
Once the information has been gathered, you now have the opportunity to file formal objections to the will and ask the court to set the will aside. A will contest proceeds in a similar fashion to other litigation matters including the opportunity to have the trial be decided by a jury.
If you feel that you have been improperly disinherited, know that you have rights. A competent probate attorney can help you enforce those rights.
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