Estate and Trust Litigation Attorneys in New York
When a will, trust, or estate administration goes wrong in New York, the dispute usually lands in Surrogate’s Court, and the rules that decide it come from the Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act. Milvidskiy Law Group P.C. represents beneficiaries, heirs, surviving spouses, executors, and trustees in contested New York estate and trust matters: will contests, objections to fiduciary accountings, removal of executors and trustees, turnover proceedings to recover estate property, spousal right of election claims, kinship proceedings, and trust disputes.
We work with New York clients from our Tarrytown office in Westchester County and by video and phone. This page explains who can bring a claim, what the deadlines look like, and how most disputes are actually resolved.
Key Takeaways:
- New York will contests are decided in Surrogate’s Court on five main grounds: improper execution, lack of capacity, undue influence, fraud, and revocation. Generally, only a person whose interest would be adversely affected by the will can object.
- Before filing objections, a party can examine the attesting witnesses and the attorney who drafted the will under SCPA 1404, generally limited to three years before and two years after the will’s date, without triggering a no-contest clause.
- A surviving spouse who is disinherited or shortchanged can elect to take the greater of $50,000 or one-third of the net estate under current law, but must act within six months after letters are issued.
Where New York Estate and Trust Disputes Are Heard
Each county has a Surrogate’s Court that handles probate, estate administration, accountings, and the disputes that arise from them. The Surrogate’s Court Procedure Act also gives that court authority over lifetime trusts and over what property belongs in a decedent’s estate. New York’s Supreme Court also hears trust matters and related civil claims, and cases can be transferred between the two courts.
Contesting a Will in New York
Who has standing to object
Objections to probate may be filed by any person whose interest in property or in the estate would be adversely affected if the will is admitted. That usually means distributees (the relatives who would inherit under New York’s intestacy rules) who receive less under the will, and beneficiaries under an earlier will who were cut out or reduced by the later one.
Grounds for a will contest
- Lack of due execution. New York requires the testator to sign at the end of the will, to declare to at least two attesting witnesses that the document is their will, and for the witnesses to sign within a thirty-day period. The court must be satisfied that a will is genuine and properly executed even when nobody objects.
- Lack of testamentary capacity. The testator must have understood, in a general way, their property, their natural heirs, and what the will does.
- Undue influence. The objectant must show that someone substituted their own wishes for the testator’s through pressure or control, not merely that a caregiver or favored child had the opportunity and benefited.
- Fraud. A knowingly false statement that caused the testator to sign a will they otherwise would not have signed.
- Revocation. A will can be revoked by a later will, by a signed writing executed with will formalities, or by a physical act such as tearing or burning done by the testator or at their direction.
SCPA 1404 examinations and the “3-2 rule”
These examinations let a family investigate before committing to a contest. Before filing objections, any party to the probate proceeding can examine the attesting witnesses and the person who prepared the will, and, if the will contains a no-contest clause, the nominated executors and the proponents as well, with document discovery. Under the Uniform Rules for Surrogate’s Court, the examination is generally confined to the three years before the date of the will and the two years after it, or to the date of death if that is shorter, unless special circumstances justify a broader inquiry. Once the examinations are complete, objections are due within ten days unless the parties agree or the court directs otherwise.
No-contest (in terrorem) clauses
New York enforces clauses that strip a beneficiary’s gift if they challenge the will, but the Estates, Powers and Trusts Law carves out safe harbors. A beneficiary does not forfeit by conducting SCPA 1404 examinations, objecting to the court’s jurisdiction, disclosing information about the will, refusing to join as a petitioner, or asking the court to construe the will. A contest alleging forgery, or that the will was revoked by a later will, is protected if based on probable cause, and infants and incompetents may oppose probate freely.
The Surviving Spouse’s Right of Election
New York generally does not allow a person to disinherit a spouse completely. A surviving spouse may elect to take the greater of $50,000 or one-third of the decedent’s net estate, regardless of what the will says. The net estate for this purpose includes “testamentary substitutes” such as joint accounts, accounts held in trust for another person, certain retirement plan benefits, property the decedent controlled through a revocable trust, and gifts made within one year of death. The election must be filed in the Surrogate’s Court and served on the personal representative within six months after letters are issued, and in no event later than two years after death, although the court can extend the time in limited circumstances.
Holding Executors and Trustees Accountable
Compelling and contesting an accounting
Beneficiaries, creditors, and other interested persons can petition the Surrogate’s Court to compel an executor, administrator, or trustee to file a formal account of everything received, spent, and distributed. Once an account is filed, any party may examine the fiduciary under oath, with document discovery, before or after filing objections. Typical objections include unexplained expenses, excessive commissions, self-dealing, sales of estate property below market value, imprudent investments, and unreasonable delay. New York’s Prudent Investor Act requires trustees to act with reasonable care, skill, and caution and to diversify unless they reasonably determine otherwise, and the law refuses to enforce clauses that purport to excuse a fiduciary from liability for failing to exercise reasonable care.
Removing an executor or trustee
The Surrogate’s Court Procedure Act lists the grounds for suspending or revoking a fiduciary’s letters, including wasting or improperly applying estate assets, willfully disobeying court orders, dishonesty, improvidence, substance abuse, want of understanding, unfitness for the office, and failing to file an account when directed. For a testamentary trustee, violating the trust or being unsuitable is enough. The court can also act on its own when a fiduciary commingles estate funds with personal funds, is convicted of a felony, or fails to account when ordered.
Recovering Estate Property: Turnover and Discovery Proceedings
When someone is holding property that belongs to the estate, or knows where it is and will not say, the executor or administrator can bring a discovery proceeding in Surrogate’s Court. The court orders that person to appear and be examined under oath. If they claim the property is theirs, title is tried as a contested issue, and if the estate prevails the court directs delivery of the property or payment of its value; where the asset has been sold, the court can impress a trust on the proceeds.
Trust Contests, Reformation, and Breach of Fiduciary Duty
Lifetime trusts can be challenged on the same grounds as wills: lack of capacity, undue influence, fraud, and failure to follow the required formalities. A New York lifetime trust must be in writing, signed by the creator, and either acknowledged like a deed or signed before two witnesses, and amendments generally must follow the same formalities unless the trust says otherwise. Disputes also arise over what an ambiguous provision means; the Surrogate’s Court can construe a will or trust in a stand-alone proceeding or as part of probate or an accounting, and its decree binds all parties. Where a drafting error defeats the creator’s clear intent, reformation may be sought, and New York permits the creator of an otherwise irrevocable trust to amend or revoke it with the written, acknowledged consent of everyone beneficially interested.
Kinship Proceedings
When a New Yorker dies without a will and without a spouse or children, cousins and more distant relatives must prove their relationship to inherit. Kinship proceedings require birth, marriage, and death records, often from other states or countries, plus testimony establishing each link in the family tree and ruling out closer relatives. After three years from death and a diligent search, the court may presume that missing persons have died and that no other distributees exist.
Resolving Estate Disputes Without a Trial
Many New York estate and trust disputes settle. Surrogate’s Courts hold conferences and may refer contested matters to mediation. A negotiated resolution can preserve family relationships and the estate’s value, which litigation costs can erode over time. We represent heirs who suspect a will was procured by undue influence or who cannot get information from an executor, and we defend executors and trustees who are doing their jobs and face objections from a disappointed relative.
Speak with a New York Estate Litigation Attorney
If you are facing a contested will, a trustee who will not account, or a family member who has taken control of a parent’s assets, contact Milvidskiy Law Group P.C. We serve clients throughout New York State from our Tarrytown office in Westchester County, and by video conference and phone. Our attorneys also practice in New Jersey and Connecticut. Our attorneys also handle probate and estate administration and trust administration, and some disputes can be resolved by getting the administration back on track.
This page is provided for general informational purposes only and does not constitute legal advice. Laws change and figures are adjusted periodically. For advice about your situation, consult a qualified attorney.
Frequently Asked Questions
How long do I have to contest a will in New York?
Objections to probate are generally due on the return date of the citation or, if you request SCPA 1404 examinations of the witnesses and drafting attorney, within ten days after those examinations end, unless the court sets another date. Once the Surrogate’s Court admits the will to probate, challenging it becomes far more difficult. If you have received a citation or a waiver to sign, speak with an attorney before the return date.
Who has standing to contest a will in New York?
Any person whose interest in property or in the estate would be adversely affected by admitting the will may object. That typically includes distributees who would inherit more under New York’s intestacy rules and beneficiaries under an earlier will who were reduced or removed. A person whose only interest is the executor’s commissions they would have earned generally needs the court’s permission to object.
What is an SCPA 1404 examination?
It is a pre-objection examination under oath of the attesting witnesses and the person who prepared the will, and in some cases the nominated executors and proponents, together with document discovery. It allows a potential objectant to evaluate the strength of a contest before filing objections. Under the Uniform Rules, the examination is generally limited to the three years before the will’s date and the two years after it, or to the date of death if sooner.
Does a no-contest clause mean I cannot challenge the will?
Not necessarily. New York enforces no-contest clauses, but the Estates, Powers and Trusts Law protects certain conduct from forfeiture, including SCPA 1404 examinations, jurisdictional objections, construction proceedings, and contests based on probable cause that the will is a forgery or was revoked by a later will. Whether a full contest on capacity or undue influence is worth the risk of forfeiture depends on the size of your gift under the will and what you stand to gain if it fails.
What is the spousal right of election in New York?
A surviving spouse may elect to take the greater of $50,000 or one-third of the decedent’s net estate, including testamentary substitutes such as joint accounts, revocable trust assets, and certain retirement benefits, regardless of what the will provides. The election must be filed in Surrogate’s Court and served on the personal representative within six months after letters are issued, and no later than two years after death. The court can extend the deadline in limited circumstances.
Can I force an executor or trustee to account?
Yes. A beneficiary, creditor, or other interested person can petition the Surrogate’s Court to compel a fiduciary to file a formal accounting. Once the account is filed, you may examine the fiduciary under oath and obtain documents before deciding whether to file objections. The court can also suspend a fiduciary who ignores an order to account.
What are the grounds to remove an executor or trustee in New York?
The Surrogate’s Court Procedure Act permits suspension or removal for wasting or improperly applying estate assets, willfully disobeying court orders, dishonesty, improvidence, substance abuse, want of understanding, unfitness, and failure to account when directed, among other grounds. A testamentary trustee may be removed for violating the trust or being unsuitable. The court can also act without a petition where a fiduciary commingles funds or is convicted of a felony.
What is a turnover or discovery proceeding?
It is a proceeding in Surrogate’s Court by an executor or administrator to recover property that belongs to the estate from someone who is holding it or to obtain information about where it is. The court can order the person to appear for examination, and if they claim ownership the question of title is tried. If the estate prevails, the court directs delivery of the property or payment of its value.
Can a trust be challenged the same way as a will?
Largely yes. A lifetime trust can be attacked for lack of capacity, undue influence, fraud, or failure to follow New York’s execution formalities, which require a signed writing that is either acknowledged like a deed or signed before two witnesses. Trust disputes also include claims that a trustee breached fiduciary duties or that ambiguous terms should be construed or reformed. These claims may be brought in Surrogate’s Court or Supreme Court depending on the circumstances.
What is a kinship proceeding?
When someone dies without a will and without close family, more distant relatives must prove their relationship to the decedent before the Surrogate’s Court will distribute the estate to them. This requires documentary evidence such as birth, marriage, and death records and testimony establishing each link in the family tree. After three years and a diligent search, the court may presume that missing relatives have died and that no other distributees exist.
Do New York estate disputes usually go to trial?
Not necessarily. Many are resolved through negotiation, court conferences, or mediation, and Surrogate’s Courts may refer contested matters to mediation. Litigation costs come out of the estate or the parties’ pockets, so an early, realistic assessment of the case often leads to a negotiated result. We prepare each matter as though it may be tried, which supports a fair settlement.
