Phoenix, AZ asked in Probate for New York


SHE made a will leaving my dads estate and a settlement from his job to her adopted daughter and boyfriend. is this legal. I am the Executor and oldest daughter, what are my rights

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2 Lawyer Answers
Nina Whitehurst
Nina Whitehurst pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Probate Lawyer
  • Crossville, TN

A: Your father's wife has no authority to change the plan of distribution for your father's estate except as to the share she inherited.

Gary Krim
Gary Krim
  • Probate Lawyer
  • White Plains, NY
  • Licensed in New York

A: To best answer your question one would have to read your father's Will. For example, if your father's Will created a trust for your father's wife funded by all his assets with her getting the income for life and on her death, the assets pass to you and your siblings, then it is possible that your father's Will gives her a power of appointment to change the direction of the assets by including a provision for that in her Will. It is also possible that the job settlement passed to your mother outside your father's estate, in which case, she can direct where that goes on her death.

If you are named as the executor of your father's estate in his Will, then you have go to court to have the Will admitted to probate to be formally appointed. As executor you have the power to collect and his assets and disburse them to your father's wife and the four of his children as provided in his Will. If you suspect your changes were made to his Will before probate then you could object to the changed Will being admitted to probate.

While your father's wife cannot make changes to you father's Will (the exercise of a power of appointment is not a change to your father's Will) she can make her own Will to dispose her assets on her death, unless she and your father had reciprocal Wills, which in most cases cannot be changed without the consent of the other spouse. If your question is limited to your mother making a Will leaving her interest in your father's estate to her adopted daughter and boyfriend, then she is within her rights to do so, assuming there were no reciprocal Wills.

Anthony M. Avery agrees with this answer

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