A client once came to our firm after his father’s death in Brooklyn. He was named the executor in the will, a document his father had drafted himself years ago. He believed his duty would be straightforward—pay a few bills and distribute the remaining assets to himself and his sister. But within weeks, a cousin he hadn’t seen in a decade appeared with a lawyer, claiming their grandfather had promised him a share of the family home. The probate process, which he thought would take months, stretched into years.
This story is not unusual. When an estate enters probate, it leaves the private world of the family and enters the public forum of the New York Surrogate’s Court. The process is designed for order, but it is rarely simple. It is a formal accounting where assumptions are challenged and intentions must be proven.
The Will Contest: When Intent Becomes a Question
A will contest is the most common probate challenge. This is not just a family disagreement; it is a formal legal objection to the validity of the will itself. In my practice, I have seen contests arise from several core issues.
Often, an objectant will claim the person who made the will—the testator—lacked the mental capacity to understand what they were signing. They might argue the testator was suffering from dementia or was heavily medicated. Another common claim is undue influence, where a beneficiary is alleged to have manipulated or coerced the testator into changing the will for their own benefit.
New York law provides a specific framework for these challenges. Under Surrogate’s Court Procedure Act (SCPA) §1404, interested parties have the right to examine the witnesses to the will—and sometimes the attorney who drafted it—before the will is officially admitted to probate. This discovery process is the first battleground. It is where we scrutinize the circumstances of the will’s signing to build a case for its validity or to expose its flaws. A will that seemed clear on paper can quickly become a source of contention under this legal pressure.
The Executor’s Burden: Fiduciary Duty and Personal Risk
Serving as an executor is an honor, but it is also a demanding role with significant legal responsibility and personal liability. The executor is a fiduciary, legally bound to act in the best interests of the estate and its beneficiaries—not their own.
This duty creates immediate challenges. The executor must identify and marshal all the decedent’s assets. This can mean tracking down old bank accounts, valuing collections of art or jewelry, and getting appraisals for real estate. It is meticulous, time-consuming work.
At the same time, the executor must address the decedent’s debts. This involves notifying known creditors and publishing a notice for unknown ones. A fiduciary must prudently evaluate each claim, paying the legitimate ones and rejecting those that are invalid. An executor who pays beneficiaries before settling all valid creditor claims and tax liabilities can be held personally responsible for the shortfall. Stewardship means protecting the estate from invalid claims just as much as it means distributing its assets.
From Valuation to Distribution: The Final Hurdles
Even with a valid will and a diligent executor, final distribution has obstacles. One of the most frequent is asset valuation. How do you place a fair market value on a privately held business, a minority stake in a real estate partnership, or a patent? Beneficiaries may have wildly different opinions, especially if one wants to be bought out while another wants to keep the asset in the family.
These disputes can paralyze an estate. If beneficiaries cannot agree, the executor may be forced to petition the court for guidance or even to sell the asset to facilitate a clean distribution of cash. This is often not what the decedent would have wanted, but it becomes the only practical way forward.
The probate process is the legal mechanism for transferring a legacy. When it works well, it is an orderly transition. But when challenges arise, it can strain family relationships and deplete the very assets the decedent worked a lifetime to build. The process is not just about paperwork—it is about defending a legacy.
For an executor or a beneficiary facing these difficulties, the first prudent step is a clear assessment of the legal landscape. We offer a preliminary review of the will and a discussion of the estate’s particular circumstances to identify potential challenges before they escalate.
