After many years as a probate lawyer, here are some of the most frequently asked questions:
1. Can a copy of a WILL be probated?
Generally, only the original WILL may be probated. However, if it can be proven that
the original WILL was never revoked and was destroyed AFTER the death of the decedent,
only then could the copy be admitted to probate.
2. Where do you PROBATE an estate?
The estate must be PROBATED in the state and county of the domicile of the decedent.
The domicile is the permanent legal resident of the decedent. If the decedent died
while traveling or temporarily staying in a hospital or nursing home, you must still
probate the estate back in the legal residence.
3. Do children have an automatic right to inherit?1
No. A decedent can legally disinherit a child in his/her WILL. Only a spouse has a
statutory right to 1/3 of the decedent’s estate. However, if the decedent dies without
a WILL, children collectively will be entitled to a share of the estate. The child’s
share depends on whether the decedent was survived by a spouse and the number of
children of the decedent.
4. Who can challenge a WILL?
Any interested party may challenge a WILL. An interested party is anyone who would have
inherited if the WILL in question did not exist or was defective . Challengers include
all distributees and anyone named in a prior WILL. Distributees may be spouses,
children, siblings and possibly grandchildren.
5. When does it make sense to create a TRUST?
There are so many practical reasons to create a TRUST. The most popular reason is when
one has property in more than one state. This TRUST would avoid ancillary probate.
A TRUST is critical when one has minor children. There are also obvious tax benefits
for creating a TRUST.
For most information regarding these five questions and any other questions you may have, Please contact me at my office at (212) 693-3737.