Estate administration is the process by which a person’s assets are distributed after the individual passes away. The way the assets of the deceased person (sometimes referred to as the decedent) are distributed depends on how the assets were owned during the person’s lifetime. For example, if the decedent owned a bank account and his child was named on the account as a joint owner, such account would pass to the child by operation of law. The same thing happens when an individual is named as a beneficiary on an account. No court intervention is necessary and typically, all that is required to access the funds is the submission of the decedent’s death certificate to the financial institution managing the account.
When a decedent dies with assets in his name alone (i.e., no named beneficiary and no joint owner), Surrogate’s Court involvement is required to officially distribute the assets. When someone dies with assets in his name alone but has no will, i.e., the person dies intestate, an estate administration process must be initiated. The Court relies on the laws of intestacy, which is a statute that dictates how assets are distributed when there is no will. The law provides that a decedent’s assets pass to his spouse and children. If there is no spouse, everything passes to the children. If there are no children, everything passes to the decedent’s parents and if the parents have predeceased, everything passes to the decedent’s siblings and then nieces and nephews, etc. These people are referred to as distributes.
If the decedent had a will, then the named executor must engage in the probate process. This process takes place in the same court as the administration process but in a different department. The probate process is often a refined straightforward procedure by which the executor is granted permission to distribute the decedent’s assets in accordance with the wishes articulated in his will.
Because Surrogate’s Court is trying to protect the rights of the distributees (the people who would have received assets had the decedent left no will), every distributee must receive notification of the probate proceeding and can appear in Court to voice his/her concerns as to why the will should not be probated. Very few wills get overturned, but a distributee who has been disinherited can cause a great deal of delay, and this in turn leads to steep legal expenses, not to mention the anguish of other family members and beneficiaries.
To illustrate these rules, assume a widow dies leaving three daughters. During the ten years preceding her death, the widow had become estranged from her oldest daughter. They had no contact, and the daughter did not visit or reach out to her aging mother. Widow executed a new will leaving all her real estate and liquid assets to her two other daughters and named them both as her co-executors. Widow made no provisions at all for her oldest daughter. Upon the widow’s death, the three surviving daughters are all distributees. This means that had there been no will executed by their mother, they would all have inherited a third of her estate pursuant to state law. But widow did have a will, and she excluded one of the distributees by naming the two other daughters as sole beneficiaries. When the two daughters attempt to probate the will, by law, they will need to apprise their older sister of her disinheritance. The will cannot be probated without the oldest daughter getting proper notification and signing off. Due to the paperwork that is sent, the oldest daughter gets a complete roadmap of how and when she can contest the will. She is given the date, time, and precise location in the Court where the probate process will take place. Money and bad feelings sometimes bring out the worst in people and it is not surprising how often a disinherited distributee will in fact show up to make trouble.
As mentioned earlier, only a small percentage of contested wills get overturned. The person contesting the will must prove that the testator (the person who signed the will) was either under undue influence or lacked proper capacity at the time she signed the will. The burden of proof is on the person contesting the will. So, the oldest daughter will have an uphill battle, but she can certainly cause significant delays and aggravation.
There are many things that can be done by the estate planning attorney to avoid the above-described scenario. Working with a knowledgeable attorney is critical to navigating the overall process of a will contest and finding alternatives to help minimize or eliminate any potential estate litigation.
Ronald A. Fatoullah, Esq. is the founder of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Debby Rosenfeld, Esq. is a senior staff attorney at the firm. The law firm can be reached at 718-261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr. Fatoullah is also a partner with Brightside Advisors, a wealth management firm with offices in New York and Los Angeles.
This summary is not legal advice and does not create any attorney-client relationship. This summary does not provide a definitive legal opinion for any factual situation. Before the firm can provide legal advice or opinion to any person or entity, the specific facts at issue must be reviewed by the firm. Before an attorney-client relationship is formed, the firm must have a signed engagement letter with a client setting forth the Firm’s scope and terms of representation.
By Ronald A. Fatoullah, Esq.
and Debby Rosenfeld, Esq.