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Documents for Incapacity

  • Durable Power of Attorney. If you become incapacitated, you will not be able to manage your own financial affairs. By executing a Durable Power of Attorney, you may grant to someone (“Agent”) the legal authority to handle and manage your financial affairs, i.e. pay bills, plan for Medicaid eligibility. A Power of Attorney can avoid a guardianship proceeding.
  • Health Care Proxy and Living Will. In addition to planning for the management of your financial affairs during incapacity, a Health Care Proxy and Living Will address who will make your health care decisions as well as address termination of life support. By executing a Health Care Proxy, you can appoint someone (“Agent”) to speak for you. A Living Will acts as your health care declarations or wishes.

Estate Litigation

A properly drafted Will should clearly identify all beneficiaries and leave no ambiguity surrounding the intentions of the Testator.  Unfortunately, estate planning documents, whether Wills or Trusts, do not always clearly reflect the intentions of the Testator. Even if the language of the documents is clear, parties may have other reasons to initiate a lawsuit or object to a Will. 

When someone with standing objects to a Will or a Trust, the estate might have to be litigated. This is sometimes referred to as a “Will contest.” These disputes can be complex and should be navigated by attorneys with expertise in such matters, including an intimate knowledge of Surrogate’s Court rules and procedures.

Surrogate’s Courts

In New York State, a Will is filed for “probate” in the Surrogate’s Court in the county where the decedent resided.  The Surrogate’s Court will determine whether or not the Will is valid. If the Will is found to be valid, the Court will oversee the allocation of assets and will ensure that the named executor carries out the wishes of the decedent in a lawful and timely manner. The Court also oversees the distribution of assets if the Testator, or deceased person, died intestate, without a valid Will.

Who Can Contest a Will?

A protesting party may only contest a Will if he or she falls within one of two categories. First, those mentioned in the Will, known as the Will’s beneficiaries, may formally challenge the Will.  Alternatively, if the challenger stands to inherit according to laws of intestacy (such as a family member), but is not named in the Will, or is expressly disinherited, he or she may seek to contest.  If one is not named as a beneficiary in the Will and is not a family member eligible for inheritance, known as a distributee, he or she may not generally pursue a formal challenge.

In order to successfully contest a Will, the contesting party must prove that the Will is invalid.  There are several scenarios under which a Will may not be admitted to probate, including but not limited to:

  • Undue influence. If the testator altered his or her Will under the threat of force or other persuasion, it is said that he or she was under undue influence;
  • Mental incapacity. Similarly, if the testator is shown to have been in an incapacitated or otherwise impaired mental state at the time the Will was executed, it may be considered void;
  • Will does not follow procedure. A Will may be contested if it was signed in the absence of witnesses, was not signed by the testator, or is otherwise not executed according to the law;
  • The Will was revoked. If the Will was revoked after it was signed, it will also be considered void. A subsequent Will, marriage, or legal action may also revoke a Will;
  • Fraud. Lastly, the contesting party can contest if he or she has proof that the testator was deliberately misled by a third party. 



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