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How to Sue for Inheritance

How to Sue for Inheritance

If you are asking how to sue for inheritance, that probably means that you feel you are not getting your full share of inheritance. This can happen in the following circumetances:

  • Someone is trying to probate a document that they claim to be a will that leaves you out or diminishes your share of the inheritance
  • The executor or administrator of an estate is giving you less than you are entitled to
  • Someone is hiding your inheritance from you

Contesting a will

Suing for inheritance can often means contesting a documents someone claims to be a will. Heirs may sue for their inheritance by objecting to the probate of that document. If the purported will is denied probate, the decedent’s estate is distributed in accordance with New York’s intestacy laws, and the omitted heirs will be able to receive their intestate share.

It is only with a will that an heir can be omitted and disinherited. With a will, a decedent can disinherit or omit his children and other heirs, except for the spouse. If a will is set aside, the closest family members inherit from the decedent. Without a will, the decedent’s estate is distributed in accordance with New York intestacy laws.

Exercising a right of election

Suing for inheritance can also mean enforcing spousal rights when a will excludes a spouse. The spouse, even if disinherited or omitted in a will, can sue for the spousal elective share, which is usually 1/3 of the value of the estate (if the estate is more than $50,000) or the entire estate (if the estate is less than $50,000). If the spouse is disinherited, omitted, or receives less than the elective share, the spouse should make its election within 6 months from the date of issuance of letters testamentary, but no later than 2 years after the decedent’s death.

A spouse who receives less than the elective share in the will should immediately consult with an estates litigation lawyer like us in order to preserve and enforce the spouse’s elective rights in a timely manner.

If you are looking for more information on how to sue for inheritance, we at the Law Offices of Albert Goodwin are here for you. You can send us an email at attorneyalbertgoodwin@gmail.com.

Demanding an estate accounting and objecting to it if appropriate

If you have inherited the remainder estate but feel that the administrator or executor has given you less than what you should have received, you should demand an accounting. Generally, the administrator or executor doesn’t owe the beneficiary an accounting, but once the beneficiaries request an accounting, the executor must provide one.

You can agree with the executor to provide an informal accounting, which does not need to be filed with the court. However, if you have objections to the informal accounting, such as expenses you feel should not have been charged to the estate or property that was sold below market value, you can request for a judicial accounting, and you can formally make your objections with the court. If the court agrees with your position, the executor or administrator will be surcharged – which means the executor or administrator will be personally liable for that particular charge.

If you are a beneficiary who would like to compel the executor to make a formal accounting or who would like to make objections to an accounting, or even if you are an executor or administrator who needs to file a judicial account in accordance with the court-approved format, we at the Law Offices of Albert Goodwin are here for you. You can send us an email at attorneyalbertgoodwin@gmail.com.

Standing to sue for inheritance

To sue for inheritance, you have to check whether you have standing to object to the will. There are generally two types of persons who can object to the will:

  • The heirs at law or distributees who are entitled to inherit from the decedent if the decedent died without a will; and
  • A beneficiary of a prior will who was not included in the current will.

If you do not fall under any of these classes of persons, you generally do not have standing to object to the probate of the will.

Grounds for objecting to the will

Another aspect to consider when you want to know how to sue for inheritance is to find a ground to object to the will. Grounds for objecting to a will are improper execution, forgery, lack of testamentary capacity and intent, improper revocation, or fraud, to name a few.

Improper execution is hard to prove, especially when the will’s execution was supervised by an attorney and it is accompanied by self-proving affidavits of the witnesses. However, most successful objections to a will are made using a combination of two or more grounds, such as lack of testamentary capacity together with undue influence.

Undue influence is probably one of the most common grounds raised in objecting to the probate of a will. In New York, to prove undue influence, one must show motive to influence the testator, opportunity to influence the testator, and the actual exercise of undue influence. Motive is shown by the fact that the person has become a substantial beneficiary in the testator’s will. Opportunity is proven by substantial access the beneficiary has to the testator. The actual exercise of undue influence can be proven by a number of factors, such as when the beneficiary was the one who procured the attorney to draft the will for the testator, the one who supplied the witnesses to the will, and the fact that testator was in a weakened state when he executed the will.

Evidence to support your lawsuit

One of the most important considerations to know when suing for inheritance is to have evidence to support your ground to object to the will. Fortunately, in New York, SCPA § 1404 allows you to gather evidence to see whether a will contest can be supported, with costs borne by the estate. SCPA § 1404 allows you to examine the attesting witnesses to the will and the drafting attorney and to request the testator’s medical and financial records three years before and two years after the date the will was drafted or up to the date of testator’s death.

Medical records may reveal the testamentary capacity of the testator and the inclination of the testator to be subjected to undue influence. If the testator has been prescribed and was drinking medicine that could affect or alter his mental state, this could be used as evidence for undue influence.

Despite knowing all these information on how to sue for inheritance, the most important part in actually suing for your inheritance and protecting your rights as an heir is to get a good estates litigation lawyer like us by your side. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.