Wills and probate Laws in New York, USA

Bismillahir Rahmanir Rahim. Praise be to God. Blessings and peace upon the messenger, and his family and companions.

The money is one of God's blessing. Since the advent of Islam, it took care of all the details of life, dealing and transactions, in order to organize society and avoid conflicts among it. 

The laws and guidelines for wills are mentioned in the Holy Quran, which defines the principles for distribution legacy in details. Islamic Sharie gave this field great attention and worked to explain it clearly. As Allah Almighty said: "Men shall have a share in what their parents and kinsmen leave, and women shall have a share in what their parents and kinsmen leave, whether it is little or abundant, it is an obligated share. If relatives, orphans, or the needy are present at the division (of the inheritance), provide for them out of it, and speak to them in kind words." {Annisaa:7-8}

The Messenger of Allah, peace be upon him, said: “Distribute wealth among those who are entitled to shares of inheritance, according to the Book of Allah, then whatever is leftover goes to the nearest male relative.”

Islamic law commanded to distribute legacy among heirdom fairly. And it defined the exact share for each heir to prevent dispute. Allah Almighty said: "Allah clarifies to you, lest you go astray, Allah is Knowledgeable of everything." {Annissaa:176}

Wills is an added possession until after death through donation. Islam also gave it attention as Allah said: "Written for any of you when death arrives if he leaves behind goods, is the will for his parents and relatives with kindness. This is a duty incumbent on the cautious." {Al Baqarah:180}

The will is concerned with the money of a Muslim, his money, debts and what he shares with others in material matters. Wills reserved the rights so Islam recommended that it to be written. ِAlso, it is allowable as in the Holy Quran mentioned: "after any bequest that he had bequeathed or any debt without harm. This is an obligation from Allah. He is the Knower, the Clement." {Annissa:12} and the messenger, PBUH, said: "Whoever dies leaving a will, he dies on the right path and Sunnah, and he dies with piety and witness, and he dies forgiven." These texts indicates its legality In Islam.

Messenger of Allah, may Allah bless him and grant him peace, said, "It is the duty of a Muslim man who has something to be given as a bequest not to spend two nights without writing a will about it." and Malik said, "The generally agreed-on way of doing things in our community is that when the testator writes something in health or illness as a bequest, and it has freeing slaves or things other than that in it, he can alter it in any way he chooses until he is on his deathbed. If he prefers to abandon a bequest or change it, he can do so unless he has made a slave mudabbar (to be freed after his death). If he has made him mudabbar, there is no way to change what he has made mudabbar. He is allowed to change his testament because the Messenger of Allah, may Allah bless him and grant him peace, said, "It is the duty of a Muslim man who has something to be given as a bequest not to spend two nights without writing a will about it."

Overview

Wills and probates involve succession rules. These rules are governed by states and depend on the deliberations within the states.  Two main legal principles govern the processes involved from a testamentary perspective (like respect to validity, instrument construction, revocation, testamentary capacity). They are the law of:

  • The situs of the property in question (governing the validity and effect of disposing of real property)
  • Testator’s last domicile (governing the validity and effect of disposing personal property (both tangible and intangible)

The courts in jurisdictions of the domicile and situs apply local state law when disposing of personal and real property unless in situations where other state jurisdictions possess an interest in the disposal.

Intestacy

States have peculiar laws governing intestacy. Intestate property is distributed based on deliberations by courts with jurisdiction over such property. The property usually passes down to the spouse of the decedent and the lineal descendants in case there are any based on the statutes of the state.

The governing laws

States have laws that govern the wills. Wills can be executed if and only if:

  • They have been written
  • Have been signed by a testator with the right mental capacity
  • Witnessed by various individuals as specified by state laws

In the case of formalities, the requirements that make for an executable will vary depending on a state. Some states have provisions to allow for holographic wills. In such a case, the instrument is not witnessed; this instrument is executed in the handwriting of the testator. Some codicils can take place before a will is executed. These codicils can be recognized in case they observe the required formalities and procedural requirements in executing the will. Wills and codicils can be availed to the public when they get probated.

Validity of wills

Individuals that do not agree with the contents of a will can challenge it after the decedent dies. States provide various mechanisms that individuals can use when challenging the validity of wills. The most commonly used mechanism is challenging the testator’s mental capacity in executing the will when the testamentary instructions were being executed. As a result of such a possibility, the testator should know and understand the nature and extent of the property, disposition made and the natural objects within a bounty. They must also be able to connect the elements during the testamentary instrument execution stage. Other grounds can be used to challenge the validity of a will. These are duress, mistake, undue influence when executing the testamentary instrument, and fraud. The individual challenging the validity of a will has the burden of proof to demonstrate that the will is indeed invalid.

Courts have the discretion to reform a will if it is evident that the reformation is in line with the donor’s intention and when there is clear and convincing evidence. The evidence has to show that:

  • There is a mistake based on the fact of law and this mistake affects the terms of the instruments
  • The donor’s intent is as demonstrated by evidence

Some circumstances may require that a will be modified. This modification is not the same as reformation. The modification can be done for purposes of achieving the tax objectives of the testator, provided the intent of the testator is not violated.

Determining the validity of a will

Validity is determined based on the laws of a particular state. Individuals in a will can petition a court with the jurisdiction for probate as a fiduciary. Generally, the fiduciary is a nominated executor. The proponent is called upon to establish whether a will is valid by proving satisfactorily before the court that the testator executed the will duly with the testamentary capacity. This means that the testator did not conduct the process fraudulently, was not under duress or undue influence. The court usually requires that the testimony of the witness to the will be present. Many courts may also accept that a self-proving affidavit is presented assigned by witnesses contemporaneously as the will is executed. The witnesses have to attest to the validity of the will instead of the testimony given.

Recognition of foreign wills

The recognition of foreign wills depends on the states involved. In numerous cases, courts in the United States do not accept jurisdiction over estates belonging to non-domiciliary. A court can accept jurisdiction when a decedent dies leaving realty in a subject jurisdiction. This usually happens where there are ancillary probate proceedings. Therefore, such cases are admissible in a US court if the foreign will was successfully probated with no contest in the domicile of the decedent. In any case, if a court seems to be unsatisfied with the validity of a probate proceeding in a domicile jurisdiction, the court can assume original jurisdiction and analyze the issue on its own concerning the validity of the foreign will. US non-resident aliens with realty in the US are advised to execute wills that are valid within the jurisdiction of the property’s location.

Estate Administration

Estate administration is all about managing and settling estates that being to an intestate. The term intestate refers to an individual who dies when there is no legal will in place. The court supervises the administration of estates when a duly qualified individual is appointed. The person that the court appoints is the administrator. This individual administers and settles estates based on the statutory rules of the state in question governing descent and distribution. The administrator is responsible for:

  • Collecting the decedent’s assets
  • Paying debts and claims leveled against the estate
  • Paying estate taxes
  • Distributing the remaining estate among the entitled individuals

 

Rules and Procedures in Estate Administration

  1. Appointment of the state administrators

These appointments are done under state law and vary from state to state. This happens when a court issues testamentary letters to an individual (one named in the will). The individual should not be an infant, incompetent or a felon. This individual should not be involved in drug and substance abuse, dishonest conduct, improvidence, want of understanding, or unfit to be in an office. The court deliberates the individual’s involvement. The state can require a fiduciary to be a resident based on the weight of the case.

  1. Consolidation and administration of estates

The process of consolidating and administering estates is handled by each state individually based on state laws. This law is different from state to state. A probate court supervises the process of consolidating and administering the estate. This court is in the jurisdiction of the testator’s last domicile. The state should also be the situs of the property in question. The courts in jurisdictions of domicile and situs use local state laws in disposing of personal and real property. The only isolated case is where a different jurisdiction has a stronger interest in the matter to be settled.

  1. Estate distribution to heirs

The mechanism for distributing such property is under state law and depends on the state in question. The executor given testamentary letters through the action of the probate court makes the distribution of such property to the heirs of the decedent. The executor also accounts for such distribution to the probate court.

  1. Settlement of debts incurred by the decedent and payment of taxes and fees

Such settlements and payments depend on state laws. However, the debts of the decedent, fees and taxes are settled by the executor (granted the letters of testamentary by the action of the probate court). The court usually requires that the executor should present an account of the settlement of the liabilities of the property in question.
The probate process tends to be time-consuming, contentious and time-consuming. As a result of this, testators execute a trust agreement that can be revoked. This execution occurs contemporaneously with the will. The assets that are moved to a revocable trust when the testator is alive cannot be subjected to probate when they die. Such assets are either distributed or retained by the trustee based on the terms set for the trust. The assets that are yet to be transferred to a revocable trust when the testator is alive can be transferred to the trust based on the will of the testator.

Estate Litigation

Estate and Trust litigation involves a specialized form of legal practice that involves resolution and litigation of trust, estates and protective processes. There are various matters encompassed in the proceedings of Trust and Estates litigation. The proceedings include: conservatorships, will contests, guardianships, claims and defense of claims involving breaches where fiduciary duties are concerned by trustees and other players (they include conflict of interest and breaches of trust), accounting, court petitions, modification of trust, protection from allegations, protection from allegations with undue influence, advocacy, decedent’s intent, and interpretation.

Trusts and Estates litigants can seek litigation measures to prevent matters such as review of policies, consultation of policies, practice, and proposed actions by corporate entities, charitable and individual fiduciaries against the standards set by the state of federal government for acceptable fiduciary action like the Uniform Prudent Investor Act, the Uniform Principal Income Act, and the standards set against malpractice.

State Probate Codes guide the proceedings. They are also guided by nuanced procedures implemented by probate and surrogate courts. The probate and surrogate courts are the statutory authority that adjudicates matters involving trust, probate, conservatorship and guardianship. The clients in the cases vary depending on the case in question. The clients are either corporate fiduciaries or individual fiduciaries. They are trustees, executors, conservators, administrative individuals, guardians, corporate beneficiaries, and wards.

Attorneys in Trusts and Estate litigation use the expertise obtained in state laws formulated to govern how the estates of decedents are administered, succession (wills and intestate), trusts, guardianship, conservatorship, and fiduciary issues. The lawyers need to be experienced in trying cases in the presence of judges and jurors. Lawyers involved in such litigation cases need to collaborate and use cross-disciplinary analysis along with estate planning, securities law, real estate, and complex civil law.

The difficult legal proficiencies demanded of lawyers practicing in this are not the only hurdles that they meet. The lawyers also need special skills and experience in handling people because of the psychology involving difficult relationships in families. They also need to know how to shatter emotional troubles like death, incapacitations, and estate plans that have been ill-thought.

Selection of a counsel in Trusts and Estates litigation requires the selection of an experienced counsel because such cases have minefields involving procedures, ethics, state tax and federal tax. The field requires an individual with more than substantial litigation experience in probate courts. The skills required are mentorship skills, arbitration skills, and negotiation skills. The skills are useful in resolving non-litigation issues like controversies in trust, estate and protective proceedings, and in helping resolve difficulties without costs of litigation.

To settle your probation case properly, you can contact our Muslim Probation Lawyer Farrukh Nuridinov, who can consult you and also aid with the preparation of documents. All you should do to get the right lawyer is to call our telephone: (+1) 347-763-93-96 or you can attend our office on 464 Ocean parkway, Brooklyn, NY 11218.

 

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