New York Probate Legal Questions

Usually, the name of the attorney or law firm's name appears on the Will itself, although there is no legal requirement.  You will possibly need to ask any siblings, other relatives, friends, and neighbors of your mother if they know.  Realize that the attorney who prepares a Will has no ongoing obligations after the Will is signed.  The estate-planning attorney isn't often the same attorney who is hired to probate the Will when the client dies.  Depending on how much time has passed, the attorney who prepared the Will may not remember and may not have any files or electronic information concerning the preparation of the Will.  Experienced estate-planning attorneys will not agree to retain the original of the executed Will for their client for a number of very good reasons.  For example, the client can revoke the Will by physically destroying the original any time before death.When the client dies, the family of the decedent typically locates the Will, often in a lockbox or safety deposit box, and the person named as executor/executrix then can, but is not legally required to, probate the Will.  If the executor/executrix and any alternates decline to serve, anyone named in the Will (including you), any creditor of the decedent, or any heir at law of the decedent can probate the Will.  ... Read More

A deed to a property listing multiple joint tenants with rights of survivorship will take precedence over a will that leaves that same property to another party. It is not clear from your facts who holds title to the property, i.e. who is listed on the deed, and who is named as a beneficiary under your grandma's will. You should take all those documents to an attorney in your state for his legal analysis. ... Read More

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. When an executor is refusing to provide an informal accounting of the estate or updating beneficiaries, the court can order the executor to provide an accounting. In section 2205 of the Surrogate’s Court Procedure Act, “the court may at any time, upon it appearing that it is for the best interests of the estate, make an order (a) requiring a fiduciary to file an intermediate or final account within such time and in such manner as directed by it, (b) suspending a fiduciary who being duly cited to account neglects to appear on the return of process without showing a satisfactory excuse, therefore, or who fails to file an account within such time and in such manner as directed by the court…”  If you need any assistance, a New York Trusts & Estates Attorney could help you.... Read More

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. You are indicating that you believe that the will was improperly executed and/or that the testator could have lacked the capacity to execute (sign) the will. Generally, any person whose interest in properly or in the estate of the testator would be adversely affected by the admission of the will to probate may file objections to the probate of the will. Some reasons to object to the probate of the will would be improper execution, forgery, lack of testamentary capacity and/or duress or undue influence. If you need any assistance, a New York Trusts & Estates Attorney could help you.... Read More

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. Whether or not the terms of the Will override the deed depends on what is said on the deed.  Multiple owners can own property in various ways. For example, a married couple can own property as a tenancy by the entirety, meaning that when one of them dies, the other inherits their share of the property without the need for an estate proceeding. The same could be true for owners as joint tenants with rights of survivorship: the survivor(s) would inherit the share of the property from the person who predeceased them. If a deed does not say or indicate joint tenancy, then the property could be presumed to be held as tenants in common wherein when one of the owners dies, their share passes through an estate proceeding and if there is a will through the terms of the will. If you need any assistance, a New York Trusts & Estates Attorney could help you.  ... Read More

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. It sounds your father may have had a life estate in the property and now that he passed the owners/heirs have to determine what to do with the propery. So, it sounds like a complaint has been filed pursuant to Article 15 of the Real Property Action and Proceeding Law:  Action to Compel the Determination of a Claim to Real Property. And it sounds like you are referring to language in section 1515(d) regarding complaints and the necessary language to include in them. Generally, that section means that the complaint has to mention whether a judgment could affect an interest of a person not in being (ex: a person not born yet) or possibly another person that could be affected by the action other than the parties named in the complaint. If you need any assistance, a New York Trusts & Estates with knowledge of Real Estate or a Real Estate Attorney with knowledge of Trusts & Estates could help you.... Read More

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. Real Estate and personal property are two separate types of assets and can be distributed separately to various heirs or beneficiaries. Inheriting real estate either through probate or as a non-probate asset (such as a joint tenancy with rights of survivorship) does not necessarily mean the joint owner also gets the contents of the home that are deemed personal property. If a person has a Will, generally that person sets forth in the Will who gets the personal property of the estate. If there is no will, the intestacy laws apply wherein generally the assets are split among the nearest class of heirs. If you need any assistance, a New York Trusts & Estates Attorney could help you.... Read More

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. An interested party (an heir or beneficiary in a Will) could request (or demand) from the administrator, an account of the collection, and distribution of assets in the estate. A Voluntary Administrator has to file a report and account for the settlement of the estate pursuant to Article 13 of the Surrogate's Court Procedure Act.: “Account for all personal property of the decedent received and disbursed by him by filing with the clerk of the court a statement of all assets collected and of all payments and distributions made by him and receipts for or canceled checks evidencing such payments and distributions. No fee shall be charged for the filing of such account.” If the administrator does not respond or provide a justifiable reason why an account was not filed (yet), the interested party possibly could seek judicial intervention by filing court papers to demand the filing of an accounting statement. Separately, insurance proceeds generally do not pass through an estate proceeding unless the estate was listed as the beneficiary. If you need any assistance, a New York Trusts & Estates Attorney could help you.  ... Read More

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. When a person who owns property dies,  the person living in the property at that time does no automatically inherits the ownership of the home in most cases (there are times when someone can inherit by operation of law, but it is unlikely to be the case with a cousin.) It all depends on how the property is titled, what the Will declares, and intestacy laws if the Will is not admitted to probate. If there are two Wills, the executor of the most recent Will would petition to probate the most recent Will. Upon the issuance of citations to heirs and notice of probate to named beneficary, interested parties, which could include named beneficiaries in a previous Will, could file objections to the Will. If later, the court does not admit the Will to probate, an older Will could be offered for probate and the process would take place again. Although some property passes outside of the probate process (ex: jointly owned property with rights of survivorship; or having a named beneficiary), the most recent will would need to be admitted to probate to determine who inherits the property. So, basically, unless the property is titled jointly with rights of survivorship, the will need to be probated to determine who inherits the property because someone could object to the probate of the Will.  If you need any assistance, a New York Trusts & Estates Attorney could help you... Read More

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. Although the courts are backed up, it is my understanding that they still will consider the issuance of temporary letters of administration (or preliminary letters if there is a WilL offered for probate0. When petitioning, the petitioner can make a written request for the issuance of the temporary letters. At its discretion, the court may accept a written request for such letters. Generally, a court would issue preliminary letters when there is a potential waste of assets. If you need any assistance, a New York Trusts & Estates Attorney could help you.... Read More

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. One way to determine if someone had a Will after they have died is to check with the Surrogate's Court to see if anyone filed a petition to probate the Will. If so, the Will would be filed with the Surrogate's Court. So, you can check with the court. If you need any assistance, a New York Trusts & Estates Attorney could help you.... Read More

You will need to provide more information. Now that your sister has passed away, it is necessary to know of she left a will or whether she died before one. If there is no state the law Will probably assign her estate to her husband. Until her assets have not been distributef you can't buy out anyone. After the probate proceedings are finished it is a matter of property law. Additionally, if any debts were left that must be paid first.... Read More

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. You do not mention whether your son had a Will. If so, the designated executor in the Will would petition to probate the Will. If there is no Will, then the next of kin would have the standing to petition to become the administrator of the estate. That would mean that an adult child would have priority to file the petition to administer the estate if your son died without being married at the time of his death. If the children are minor children, then possibly the Mother could be appointed as the guardian of one of the children to petition to become the administrator, although it is unclear whether the court would grant the request depending on the facts of the situation. Separately, if there are adult children or the adult children refuse or waive their right to administer the estate, then a parent could attempt to petition or cross-petition to become the administrator. Lastly, depending on the size of and complications in the estate, the court could appoint the public administrator to administer the estate rather than the surviving parent of the minor child or a parent of the decedent. If you need any assistance, a New York Trusts & Estates Attorney could help you.... Read More

Hello. My name is Damien. I am an attorney in New York City practicing in the New York City metropolitan area. An estate proceeding is necessary to transfer real estate to heirs when the real estate is solely in the name of the decedent and there is not a will.  If some of the heirs do not want the inheritance rights to the real property, they can renounce the right to the asset with a submission of a filing in court. When someone dies without a Will and owns real estate, one of the heirs has to petition the court to administer the estate in an estate proceeding. The court will issue letters of administration to the personal representative who would then become the administrator of an estate. At that time, the administrator can execute an administrator's (executor's) deed to transfer the property to the heirs who receive the inheritance. For filing a petition, it is could be possible to do an electronic filing on the court's website or possibly obtain a copy of the petition on the court's website and file the papers with the court. You do not need an attorney to file the papers although it would be helpful albeit with fees. If you need any assistance, a New York Trusts & Estates Attorney could help you. If you wish to speak on the phone about it, you can call Damien Bosco, P.C. at (646) 452-7082 or email me at DamienBoscoEsq@gmail.com... Read More

Hello. My name is Damien. I am an attorney in New York City practicing in the New York City Metropolitan Area handling Trusts & Estates. You mention that your brother sold your deceased father's home. In order for an heir to sell or transfer real property that is solely titled in the decedent's name, the heir has to be the personal representative of the estate of the decedent. To sell a house that is solely in the name of the decedent, the executor, if there as a Will, would petition the court to probate the estate; or if no will, an heir would petition to become the administrator of the estate. After court issues letters permitting representation, the personal representative can take steps to collect and distribute assets, which could include selling assets. Other heirs, such as other siblings, would get notice of the estate proceeding through a citation. Those heirs would share in net proceeds of the estate either as set forth in a Will or through by the intestate statutes. Generally, when there is a question as to the handling of an estate, an heir can request or demand an accounting of the estate. If you need any assistance, a New York Trusts & Estates Attorney could help you. If you wish to speak on the phone about it, you can call Damien Bosco, P.C. at (646) 452-7082 or email me at DamienBoscoEsq@gmail.com... Read More

Hello: My name is Damien. I am an attorney in New York City. Possibly, an attorney can follow up for you with the NYSLRS to request the status of the pension distribution. Also, I have found that if you can get one person on the phone and keep that person's contact information, that person can help with follow-ups when checking. Another way is to formally write a letter requesting the status and the timing of the distribution. If you need assistance a New York Estates Attorney may be able to help you. If you wish to speak on the phone about it, you can call Damien Bosco, P.C. at (646) 452-7082.... Read More

When someone dies without a Will, the property of the decedent passes through the intestacy laws. This generally means that the spouse initially gets a certain amount of money and then splits the rest of the assets with the children of the decedent. An heir has to open an estate proceeding. In a situation where there are bank accounts or other assets solely in the name of the decedent without a designated beneficiary, an heir would petition the court to become the administrator of the estate. A spouse would have priority to petition the court and if the spouse is unable, unwilling to do so, one of the adult children could do so. The Surrogate's Court clerk in the county where the decedent resided could have the forms or possibly the forms would be on the court's website. Also, of course, an attorney could represent the petitioner in the proceeding.... Read More