When a will is used to arrange for postmortem asset transfers, an executor is named in the document. This is the person or entity that will act as the estate administrator. After the passing of the testator, the executor would admit the will to probate. In New York, the Surrogate’s Court would provide supervision during this process.
Proving of the Will
There is a proving of the will during probate. The court examines the document to make sure that it was properly executed. In New York, a will must be signed or acknowledged by the testator in the presence of two witnesses.
When you are executing a will, you have to clearly declare to the witnesses that the document that you are signing is in fact your last will. Finally, the two witnesses have to sign the document.
Notarization is not necessary, but you can go to a notary to make the document a “self-proving” will. To do this, the witnesses would sign an affidavit in front of the notary attesting to the fact that all parties knew that they were signing a will.
When a will has been self-proven, the court does not have to contact the witnesses during probate, and this can speed up the process.
Challenging a Last Will
It is possible for someone to come forward during probate to issue a will contest. There are several different grounds that could be accepted by the court if a strong enough case is made.
One of these grounds is improper execution. We have explained the steps that must be taken for a will to be valid. If the will has not been properly executed, a contest could be successful.
An interested party can argue that a will should not be recognized because the testator was incapacitated when it was executed. It is worthwhile to note that about 8 percent of all senior citizens have contracted Alzheimer’s disease. The number swells to 40 percent when you are talking about people that are 85 years of age and older.
This is not to say that large numbers of people execute wills when they are not of sound mind. However, it does happen, and there is recourse under the law when these situations arise.
Fraud is another acceptable ground for a will contest. Instances of deception or forgery would fall under the fraud umbrella.
In some rare cases, a person will be coerced into signing a will through the use of threats. The coercion could be physical, and there could be instances of blackmail. A will can be deemed invalid if the testator was unduly coerced into signing it.
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