If you would like to make a will and you are dealing with a small amount of money, you can print out a New York will form from the internet, fill it out and sign it in front of two witnesses. But where a significant estate is involved, it is important to have an experienced New York wills lawyer draft your documents and conduct the will execution ceremony. The same is true when a will has to be probated, contested or defended: in each situation a lawyer who works in the Surrogate’s Court every day changes the outcome.
What a Lawyer-Drafted Will Gives You
A wills lawyer who has drafted hundreds of wills has seen every kind of situation and contingency, and will explain the issues you need to address before you sign anything.
The first benefit is foresight. An experienced estate lawyer helps you avoid problems you would not have thought to consider, sets out several estate planning options, and works with you to find the best possible arrangement. That includes looking at the estate tax and income tax consequences of the plan and advising you on the best strategy for your family.
The second benefit shows up only if the will is ever challenged. The attorney who drafted the will is the best defense against it being set aside. A lawyer who stands behind a will they drafted is a highly credible witness: they can testify that the person who made the will had the capacity to do so, in that they understood who their natural beneficiaries were, understood the extent of their property, understood that they were making a will and what was in it, and in general possessed the understanding that this important decision requires.
Where the lawyer knows there is a possibility of a contest, for example because someone is being left out, the lawyer will use defensive will drafting techniques to minimize the chance that a contest succeeds. Those techniques include getting a doctor’s report before drafting the will, meeting with the will maker several times to document their wishes, making several wills over the years, and inserting a no-contest clause, under which the person is not cut out entirely but is left something on condition that they lose it if they challenge the will.
Probating, Contesting and Defending a Will
After a death, the will goes to the Surrogate’s Court, and the role your lawyer plays depends on which side of the proceeding you are on.
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When probating a will
A qualified wills lawyer makes sure that probate takes the least amount of time, that all the laws are followed, and that the estate is distributed as fast as possible without personal liability to the executor from the other beneficiaries or from the creditors of the estate. That includes having the beneficiaries sign and properly execute releases of liability to the executor or, if the beneficiaries do not cooperate, preparing an accounting and having the court approve it. Probating a will in New York is a complicated process that should be done with the help of a will attorney.
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When contesting a will
Work with a wills lawyer who has experience contesting wills. An experienced lawyer knows the law and the procedure, is familiar with how things are done in the Surrogate’s Court of the county you are in, and is an experienced negotiator who will do their best to get you a fair share of the estate without going to trial. If a trial is needed, the lawyer should be familiar with the New York Civil Practice Law and Rules and experienced in conducting trials in the Surrogate’s Court.
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When defending a will contest
The attorney who originally drafted the will cannot represent you in the contest, because they are a witness in the proceeding. You need an attorney with a track record of successfully defending will contests, whether by settling for a reasonable amount, waiting for the contestant to run out of steam, or taking the case to trial. Once again, if a trial is needed, the lawyer should be familiar with the Civil Practice Law and Rules and experienced in trying cases in the Surrogate’s Court.
In any situation where a New York will and a significant amount of money are involved, an experienced New York wills lawyer means your rights are fully protected and you get the best outcome the law and the facts of your case allow. Albert Goodwin has drafted and probated wills and prosecuted and defended will contests in the Surrogate’s Courts of New York, Kings, Queens, Bronx, Richmond, Nassau, Suffolk and Westchester counties since 2008. Call us at 212-233-1233 or email [email protected].
