Kamilla Mishiyeva, Esq., Probate and Estate Lawyer

When first meeting with potential clients in need of probate services, clients are often anxious and stressed. Although dealing with a probate of an estate in NY can be an unpleasant process, there is no way around it. Majority of NY estates require probate, whether it be for a large estate or a small bank account. While most Surrogate’s Court proceedings are fairly straightforward, a common frustration shared by estate attorneys in NY and lay people alike, is that many counties are backlogged (especially in the summer months), and any issue with an estate can result in significant delays.

The existence of disputes among family members has become ubiquitous in Surrogate’s Court. Although there are numerous legitimate and logical reasons for disagreements, not all disputes are justified. When estate lawyers get involved, it is imperative to keep in mind that legal fees can quickly add up to to tens of thousands of dollars if parties cannot agree. By way of this article, we will explore the different ways to resolve disputes for the purposes of avoiding delays and significant legal fees.

Write a Demand Letter  

Demand letters are frequently used by NY estate attorneys as pre-litigation tools aimed at resolving conflicts before you are compelled to go to court. There are a number of advantageous in serving a demand letter: urge the recipient to resolve the issue quickly; help the recipient understand their wrongdoing; and notify the recipient of imminent court intervention if they fail to fix the situation. A compelling demand letter can convince the recipient to act in your favor. Some of the ways you can use a demand letter in probate matters is by demanding the real property of the estate be sold, advising the recipient that that he/she is in violation of a court order or statute, or that they have breached their fiduciary duty by their actions. For example, if the estate includes a house that the executor is occupying and refuses to sell, a demand letter that the executor vacate and the property be sold, before filing a motion can prove successful and economic.

Compromise Early On

Just like in any other civil litigation, the cost of probating a will or administrating an estate in New York can run high if parties cannot get along. Although some disputes are justified, most are not. Family members often engage in ugly disputes over selling estate property, opening an estate bank account, and estate planning documents such as trusts and power of attorneys. It is common to see siblings battle each other over estate property, but in reality they sorting through longstanding childhood issues of sibling competition and dominance.  Once the parents have passed away, family members often experience opposing beliefs about their rightful role in dealing with the estate of the deceased.

Albeit uncommon, some areas of estate law are black and white. For example, if decedent’s last will and testament gifts her house to her three children, the solution is clear. The real property must be sold and the sale proceeds split amongst the parties, or a party of interest buys out the share of another. The financial cost to ultimately have a judge order the sale of the house can be significant. Two of the principal advantages of compromising early on is saving parties the delay and costs of estate litigation.  Compromises are more likely when each side is represented by legal counsel and options are clearly described to them. Depending on the complexity of the issue and the size of the estate, disputes can easily last for years, and may at times conclude after the parties themselves have passed.  Parties should welcome the opportunity of settling differences amongst each other early on before rushing to Surrogate’s Court.

Consider Settling

Settling a matter does not have to be one sided, it can be favorable to both parties. By ways of settlement, instead of one party getting nothing, both parties get something.  Most people want the entire pie, but isn’t it better to guarantee yourself a piece of the pie and forego the gambling risks associated with having a judge or a jury decide your fate. Consider entering into settlement talks early by keeping in mind that by farther along as you go down the estate litigation path, the smaller the estate by way of lawyer fees.

In a will contest or will challenge, start by considering what you will get if the challenging party wins. If you stand to get nothing, then all the reasons to settle early on. I am not saying that you should plan of giving half of the estate to the contesting party as part of the settlement. By weighing the case objectively, try to determine how likely it is that the party will prevail in the will contest. If you will receive half or a third of the estate, offer the party less than their share if they win. They too should realize that they will get nothing if you win. Parties are free to settle a dispute or will contest any which way they please. The settlement offer may depend on the offering party’s belief on what they feel is fair and may include why they believe the disinherited party was left out of the will. If their reasons are compelling, they may not be willing to offer much of the estate share in settlement negotiations. On the other hand, if the party considers you a nuisance and wants to move on with their life, they may offer a high enough number to conclude the estate. As it is both challenging and very costly to prevail in a will contest, the party may be willing to accept a smaller amount in exchange for not having to expend large sums of money on attorney fees or risk of losing in Court.

If you are interested in contesting a will or are facing a will challenge in NY, or need assistance resolving disputes among heirs and beneficiaries, call us for a free a free consultation. A NY estate lawyer can help you reach a solution.  You can reach us at (646) 233-0826. Visit us at www.NYCProbateLawyer.com.