Q: If I specifically disinherit my child in my Will, does he or she still have the right to contest my Will?
A: There are certain individuals who have the right to contest your Will even if they are specifically disinherited, whether or not they are named as a beneficiary under your Will or if they were left with a disproportionate share of your estate. A disinherited child has the right to challenge or contest your Will because, if you died without a Will, your child would receive a share of your estate through the laws of intestacy.
A disinherited child is required to receive notice that your Will is being offered for probate in the Surrogate’s Court by the Executor named in your Will. One form of such notice is called a “Waiver of Process; Consent to Probate”. The Executor is required to obtain a signed Waiver from your disinherited child. If your child signs the Waiver, he or she is stating that the Will is valid and that the person named in the Will as Executor should be appointed as such.
Alternatively, if your child does not sign the Waiver discussed above, there is the more time consuming and expensive process of obtaining a probate citation and a court date to appear in Surrogate’s Court to formally object to the Will. Once the Court issues the citation, it will be served on your child. On the citation return date, your child and/or his or her counsel will be required to appear in Court to formally contest your Will. If no one appears on the citation return date, your child effectively waives his or her right to contest your Will.
Fortunately, there are ways to avoid probate and effect your estate plan without having to commence a proceeding with the Surrogate’s Court. If you think that a child might contest your Will, you may want to consider establishing a trust during your lifetime. A properly drafted and funded trust can help you avoid the probate process and the possibility of a contested Will proceeding. Comprehensive estate planning during your lifetime can ultimately save your estate time and money.
– Maria Johnson, Esq. and Nancy Burner, Esq.