Roy B. Oser, Esq.

By Roy B. Oser, Esq.

Many people know the basic purpose of a will and wisely seek advice in drafting one; few, however, are familiar with the procedures that must be followed in order to give the instructions in a will the force of law. A basic understanding of these procedures will help you understand how a will works and help to ensure that you accomplish your estate planning goals.

The proceeding under which a will gains the force of law is called a probate proceeding; this culminates in the will's being admitted to probate, that is, deemed by a court to be enforceable. The vast majority of properly drafted and executed wills are routinely admitted to probate without elaborate and costly proceedings, and I will outline a number of ways in which you can improve the odds of a successful and efficient probate proceeding. First, though, you should have some idea of what a probate proceeding is.

Under a probate proceeding:

1. Persons potentially interested in a will, such as persons named in the will and creditors of the estate, are notified by the proponent of the will, who is a party with an interest in the will who submits it for probate.
3. An application is made to the court to issue letters testamentary, empowering the executor named in the will, or appointed by the court if no executor is named, to carry out the instructions contained in the will for distribution of assets of the estate to beneficiaries. If the will creates a trust (called a testamentary trust), executors and trustees of the trust are fiduciaries, persons who owe a special duty of loyalty and trust to the estate and its beneficiaries.

To establish the validity of the will, the proponent must establish due execution and testamentary capacity; if those two elements are established, an objectant (one who objects to the admission of the will to probate), must establish undue influence or fraud.

The requirements of due execution and testamentary capacity vary from state to state. In New York, to meet the due execution requirement, a will must be in writing and signed at the end by the testator, the maker of the will, in the presence of two attesting witnesses. To have testamentary capacity, a testator must be over the age of 18 and know and understand, at the time the will is executed:

1. the scope and meaning of the provisions of the will;
2. the nature, extent and condition of his or her property; and
3. her/his relation to the person who would ordinarily be considered an object of her/his bounty.

Unless objections are filed, testamentary capacity is deemed to be proved by showing that the will is properly executed and witnessed, and by the testimony of the attesting witnesses, usually submitted through self-proving affidavits executed by the witnesses at the time of execution of the will. Your attorney should understand the language required for these affidavits in your state.

Anyone whose interest in the estate would be adversely affected by admission of the will to probate may object. Grounds for objection include:

1. invalid execution of the will,
2. lack of testamentary capacity, or
3. the will was the result of undue influence or fraud.

The filing of objections creates a will contest. In New York, one who is considering to be filing objections to a will can obtain testimony from certain witnesses to determine if grounds exist for filing an objection. Once objections are filed, a will contest can proceed to a full hearing with testimony from a broader array of witnesses. Possible witnesses in a will contest before or after objections are filed include:

1. the attesting witnesses;
2. the person who prepared the will; and,
3. if the will contains an in terrorem clause (a clause that prevents one who unsuccessfully contests a will from inheriting under it), the nominated executors and proponents.

In New York, after objections are filed, parties may obtain full pre-trial discovery available under New York's civil litigation rules.

In addition to will contests, there are two other main types of will-related litigation: construction and accounting proceedings. A party who does not object to the will but who disagrees with how its instructions are being interpreted by the executor or other fiduciary can bring a construction proceeding to determine how the disputed portions of the will should be interpreted. A party who objects to how the executor or other fiduciaries are carrying out their duties may bring an accounting proceeding. Like will contests, construction and accounting proceedings can turn into lengthy litigations with full pre-trial discovery culminating in a full trial.

Now that you know what is or may be involved in a probate proceeding you may be motivated to give some thought to facilitating the probate of your will in the following ways:

1. Carefully choose the witnesses and drafter of your will. All should be neutral and disinterested in the distribution of your assets. Beneficiaries should not participate in the drafting of the will and in New York they cannot be attesting witnesses to the will.
3. Make your intent clear from the language of the will; it should be clear, for example, whether you intend to give a lesser share or nothing to one child, or to treat all children equally, as should be the duties and powers of your executors and trustees and the purpose of any charitable or other trust.
5. Consider using an in terrorem clause (that is, a clause that prevents someone who unsuccessfully contests a will from inheriting under it) to give disincentive for anyone named as a beneficiary in the will to object to it.
7. Hire an attorney admitted to practice in your state to draft and supervise the execution of your will.
9. The original will should be left with your attorney, placed in a jointly held safe deposit box, or otherwise put where it will be available to responsible persons.

Following these simple procedures will help insure that your will does not result in time-consuming and costly disputes that can dissipate assets you intended for family and charitable purposes, and even result in the instructions of your will being misinterpreted or disregarded entirely.

Roy B. Oser practices law in New York and New Jersey.