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lwpat
lwpat, Attorney at Law
Category: Estate Law
Satisfied Customers: 25384
Experience:  Attorney with experience in wills, estates and trusts
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What is the deadline for contesting a will in New York state? Should

Customer Question

What is the deadline for contesting a will in New York state?

Should the Executrix by law be obliged to submit both the will and Codocil to the probate attorney and the probate court?

If the Executrix failed to inform her probate attorney and court of the existence of a Codicil is this cause for concern suggesting fraud?

Should the attorney who notarized the will and Codicil have a record of this transaction? Is this attorney obliged to inform the probate attorney of the existence of a Codicil? If this has not been done, is this a breach of the law in NY state?

If one of the two witnesses is an illegal immigrant at the time of signing the will and Codicil does that act affect the status of the will and Codicil?

Can the Executrix legally detach the Codicil and submit only the main testament and will to the attorney and court?

Is the Executrix obliged by law to file the entire will and Codicil and distribute to a sibling beneficiary an accurate summary of the estate's assets?

How are assets distinguished from estate in a will? Who makes that determination?

If the deceased person left an amount of money for funeral expenses and a sibling contributed additional money for the funeral expenses, should the Executrix be required to reimburse his portion if the original amount left by the deceased exceeded the total cost?

Why would an attorney authenticate a will that can be superseded by a joint tenancy survivor rights?

What evidence is required to establish that the deceased parent intended that her estate be distributed to both children as stated in each paragraph of the will -- "equal shares" -- and not solely to the Executrix?

Why would a parent sign a will in the presence of a lawyer and two witnesses if that parent were aware that the will as it pertains to the estate would be null and void under NY state law?

In such a situation, why would the attorney who authenticated the will be the only person entitled to purchase the house of the deceased person?
Submitted: 2 years ago.
Category: Estate Law
Expert:  lwpat replied 2 years ago.
Normally you are limited to one or two questions. That is why your question has been marked as underpriced.

Should the Executrix by law be obliged to submit both the will and Codicil to the probate attorney and the probate court?

The party with the will is required to submit the will and all codicils to the surrogate court. That is one reason I do not do codicils, they can easily be detached from the will.

If the Executrix failed to inform her probate attorney and court of the existence of a Codicil is this cause for concern suggesting fraud?

It is a fraud upon the Court not to submit the entire will to the court which would include all codicils and any other written instructions. Such would be grounds to file a petition with the court to have the executor removed and someone else appointed.


Should the attorney who notarized the will and Codicil have a record of this transaction? Is this attorney obliged to inform the probate attorney of the existence of a Codicil? If this has not been done, is this a breach of the law in NY state?

The attorney should have a copy. If he is made aware that the entire will has not been submitted, he has an ethical duty to notify the court. If he does not, then that would be grounds to file a complaint with the state bar association.

If one of the two witnesses is an illegal immigrant at the time of signing the will and Codicil does that act affect the status of the will and Codicil?

No it does not.
lwpat, Attorney at Law
Category: Estate Law
Satisfied Customers: 25384
Experience: Attorney with experience in wills, estates and trusts
lwpat and 4 other Estate Law Specialists are ready to help you
Expert:  lwpat replied 2 years ago.
Can the Executrix legally detach the Codicil and submit only the main testament and will to the attorney and court?

No.

Is the Executrix obliged by law to file the entire will and Codicil and distribute to a sibling beneficiary an accurate summary of the estate's assets?

Yes. If that has not happened the sibling would have to file a petition in the probate court to require production of the entire will and an accounting of the estate. One problem is that the executrix may try to claim that the decedent is the one that removed the codicil and destroyed it. Here is the form to file to compel an accounting

http://nycourts.gov/forms/surrogates/accounting.shtml

How are assets distinguished from estate in a will? Who makes that determination?

I am not sure of your question. There are certain assets that pass outside of probate and not by the will. Generally those are joint accounts with the right of survivorship, life insurance and retirement funds.

If the deceased person left an amount of money for funeral expenses and a sibling contributed additional money for the funeral expenses, should the Executrix be required to reimburse his portion if the original amount left by the deceased exceeded the total cost?

The sibling can file a formal claim against the estate. You do that by presenting an invoice for payment to the executrix and also to the surrogate court.

Why would an attorney authenticate a will that can be superseded by a joint tenancy survivor rights?

That can always happen. Accounts can be changed after the execution of the will. In addition, you never know what party will pass first. A and B are on a joint account. A dies and then the account belongs to B. Then B dies. The fact that A was on the joint account now does not matter so you have to cover everything in the will of both A and B.
lwpat, Attorney at Law
Category: Estate Law
Satisfied Customers: 25384
Experience: Attorney with experience in wills, estates and trusts
lwpat and 4 other Estate Law Specialists are ready to help you
Expert:  lwpat replied 2 years ago.
What evidence is required to establish that the deceased parent intended that her estate be distributed to both children as stated in each paragraph of the will -- "equal shares" -- and not solely to the Executrix?

You have to look to the actual wording in the will. Since it was apparently drafted by an attorney it should be crystal clear as to the heirs. The heirs should be named and then how the various parts of the estate are to be distributed to each heir. It should be in terms that anyone could understand.

Why would a parent sign a will in the presence of a lawyer and two witnesses if that parent were aware that the will as it pertains to the estate would be null and void under NY state law?

I am not sure why it would be null and void. I also am not sure if you are a child or a sibling.
If you can clarify this question I will continue. I may have already covered it in the answer about the joint accounts.

In such a situation, why would the attorney who authenticated the will be the only person entitled to purchase the house of the deceased person?

That sounds like a conflict of interest and an ethical violation. Is this specifically stated in the will?

Here is the entire Surrogate's Court Procedure

http://codes.lp.findlaw.com/nycode/SCP

You can contest the will at any time up until the estate is closed. However, a will contest is expensive and time consuming and I am not sure what grounds you may have to contest. Where a will is drafted and witnessed by an attorney it is almost impossible to contest unless you can show a conflict of interest on the part of the attorney.
lwpat, Attorney at Law
Category: Estate Law
Satisfied Customers: 25384
Experience: Attorney with experience in wills, estates and trusts
lwpat and 4 other Estate Law Specialists are ready to help you
Customer: replied 2 years ago.
You have not answered my first question - "What is the deadline for contesting a will in New York state?"
Expert:  lwpat replied 2 years ago.
You can contest the will at any time up until the estate is closed. New York does not have a specific statute of limitations with regard to will contests. Therefore, the standard 6 year statute of limitations would apply. However, once the court closes the estate, then it is almost impossible to contest the will since that is an order of the court. There would have to be some form of newly discovered evidence that was previously unavailable to you in order to justify reopening the estate. The grounds to contest a will are very limited and there is an extremely high burden of proof.

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Attorney with experience in wills, estates and trusts