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Are you eligible to file probate litigation against a will?

Who can challenge a will? This may seem like a silly question -- you should be able to challenge any relative's estate plan, right? Not so fast. Experts in New York say that contesting a will requires a very specific set of circumstances. A relative who is miffed about not receiving his or her fair share of the estate is generally not entitled to pursue probate litigation. The right to contest a will is generally limited to a few "interested persons" who must fit specific legal criteria.

Interested parties generally include the decedent's heirs, children, creditors and current or ex-spouses. Other interested parties may consist of those who have some type of property right or claim against the estate in question. In most cases, only three types of people can challenge a will: beneficiaries of a previous will, beneficiaries of a will that was written later and intestate heirs. Many beneficiaries will choose to challenge the estate documents because of the existence of multiple wills.

Beneficiaries do not necessarily have to be relatives of the decedent to challenge the will. Beneficiaries are generally named in the estate documents. They may include charitable organizations, friends, professional colleagues and any other person or entity specifically mentioned in the estate plan. Similarly, heirs are entitled to challenge a will because they would receive a part of the estate through the default intestate rules. The term "intestate" simply means "without a will." Heirs may challenge the will if they believe the distribution of assets was unfair.

Individuals who want to prevent probate issues from arising may include a "no contest" clause that effectively disinherits someone entirely if he or she chooses to challenge the document in court. This "take it or leave it" approach may not be enforceable in all states, however, making it an unreliable tool. The key to ensuring that your estate is disposed in the way you see fit: work with an attorney to develop a comprehensive and airtight estate plan.

Source: FindLaw, "Who Can Challenge a Will?" Sep. 23, 2014

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Weinstein & Randisi
290 Linden Oaks, Ste. 200
Rochester, NY 14625

Toll Free: 800-768-1780
Phone: 585-310-1578
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