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New York Probate Questions & Answers
3 Answers | Asked in Estate Planning and Probate for New York on
Q: My mother and step-father (who are residents of NYS)own valuable real estate. If my mom passes away, do I have any

claim to her share of the property?

Elaine Shay
Elaine Shay answered on May 9, 2022

Basically that depends on two factors -- how title to the property is held and whether your mother has a will.

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3 Answers | Asked in Estate Planning and Probate for New York on
Q: My mother and step-father (who are residents of NYS)own valuable real estate. If my mom passes away, do I have any

claim to her share of the property?

Gary Krim
Gary Krim answered on May 9, 2022

It depends on a number of things:

1. What title on the property is - if you are on title then you have a claim to at least part of the property

2. Does you mother have a Will naming you a beneficiary - if there is a Will and you are not named as a beneficiary then assuming the Will...
Read more »

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2 Answers | Asked in Probate for New York on
Q: My mother has a will filed in Erie county ny She has passed away in a nursing home . She has no outstanding debt of any

Kind .all she has is a small joint checking account of 13,000 dollars. It is in her name and my name her daughter and I am executor of her will . Do I need to file probate or can I just close the joint account with proof of her death . There is no home or property or assets of any other kind . Ty... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on May 4, 2022

If you are a joint owner it is your account as much as it was hers. No need to probate her will.

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1 Answer | Asked in Estate Planning, Family Law and Probate for New York on
Q: Property's owned by 3member LLC. Upon death of a member, does his spouse have a say or its just other members?

The property is owned by a three member LLC with 5%, 15%, and 85% distribution. Upon death of the member with 5%, what happens to the property? Does his wife have a say in what happens with the property? Does she get any benefits from the property? Can she make decisions on the property? If the... Read more »

Michael David Siegel
Michael David Siegel answered on Apr 6, 2022

Depends on the operating agreement. If truly silent, the shares pass to the estate.

1 Answer | Asked in Elder Law and Probate for New York on
Q: Need a Notary Public to witness signing my will
Elaine Shay
Elaine Shay answered on Mar 14, 2022

In New York State a notary public is not required for a will but two witnesses are. Since all formalities must be properly completed or a will to be accepted to probate, I strongly suggest that you have a lawyer prepare and supervise the execution of your will instead of DIY.

1 Answer | Asked in Probate for New York on
Q: What if a living will was signed and witnessed and notorized but not completely filled out, mussing some important info.

Two people are named, 1 to recieve 50%, the 2nd 30%, but the other 20 is not mentioned in the will. The 1st 2 people however are fully aware of what the wishes were for the remaining amount, due to many verbal conversations prior to death,and in agreement of it. It just is not there. The 1st person... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on Mar 13, 2022

Your question appears to be about a Will. A living will something different. However, usually if percentages fall short of the full amount, any mention of the residuary means whatever is left. See if the Will mentions “residuary” or “residual”.

1 Answer | Asked in Family Law and Probate for New York on
Q: Mother past away, her portion of aunt's will to split between my sister & I. Lawyer hasn't sent info to start.

I have received a copy of the will and athe paperwork of how everything is to be divided.

But I also requested an accounting twice and have not received anything showing the accounting of aunt's will or anything to sign. Aunt passed away almost 3 years ago. What can I do? They are in... Read more »

Bonnie Lawston
Bonnie Lawston answered on Feb 28, 2022

You may compel an accounting 7 months after the appointment of a fiduciary and admitting the Will to probate. The accounting would also force the estate to distribute the funds. You do not need to be in NY but retain the services of an attorney who practices in NY. Our clients who have... Read more »

1 Answer | Asked in Real Estate Law, Estate Planning and Probate for New York on
Q: Prior to the new changes, who inherits property in PR if grandfather died nearly 30 yrs ago?

Out of 7 children and my grandmother, my aunt is the only living child. 24 grandchildren, including her children are living. Under the previous law, who would have been executor of estate and rightful heir? Under new law, I read that we all are. One cousin lives there for years. My aunt claimed... Read more »

Elaine Shay
Elaine Shay answered on Feb 27, 2022

The state where a decedent lived at the time of his/her death determines which law applies for the determining distribution of estate assets. In New York, if there is not a will that provides for a different distribution the order of inheritance is outlined at this link:... Read more »

1 Answer | Asked in Probate for New York on
Q: How do we go about receiving our beneficiary benefits if an insurance company deemed the policy abandoned but it wasn't?

The insurance company asked for paperwork about the deceased primary care physician and hospital stays at time of death, which was provided multiple times. They insisted the facility had no records of deceased, however when we placed the call to the facility, that was clearly not the case and they... Read more »

Nina Whitehurst
Nina Whitehurst answered on Feb 23, 2022

It sounds like the life insurance company might have given up (a bit prematurely perhaps) and decided to go ahead and escheat the life insurance proceeds to the state. Go to this website for the New York unclaimed funds department and look for the name of the life insurance beneficiary:... Read more »

2 Answers | Asked in Probate for New York on
Q: Can a sole executor of a will (also a beneficiary) sell real property without the other beneficiaries approval ?

Both parties have equal share of real property stated in will.

Bonnie Lawston
Bonnie Lawston answered on Jan 19, 2022

The executor has the right and obligation to administer the estate which generally means selling the real property as soon as reasonable possible and appropriate. The executor must do what’s right for the estate and maximize the inheritance no matter who is the beneficiary.

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3 Answers | Asked in Estate Planning, Real Estate Law and Probate for New York on
Q: Hello from New York. My dad recently died, my mom died a year earlier, the house is still in my dad's and mom's name.

I live in the house. Dad and Mom wanted only me to have house, not my brother, because I took care of them for over 10 years. There are no papers signed though for me to have it. My brother said you have to have his name on it also because they left no papers for me to have it.

Is this... Read more »

Michael David Siegel
Michael David Siegel answered on Jan 10, 2022

Your brother is right. Children split equally if there is no will.

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3 Answers | Asked in Probate and Tax Law for New York on
Q: Are assets sold during probate to settle estate debts subject to capital gains tax?

If an estate entering probate has substantially appreciated assets and also has debts, such that some assets must be sold to settle the debts, are the proceeds from the sale subject to capital gains against their original basis or their stepped-up basis from the date of death?

Michael David Siegel
Michael David Siegel answered on Dec 3, 2021

There is estate tax (above a certain value) on the value of the estate. There is income tax to the fiduciary for income realized during the administration of the estate. If assets are sold at a profit, the gain is on the difference between the date of death value and the sale price, which is... Read more »

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3 Answers | Asked in Personal Injury and Probate for New York on
Q: Hello, Can you explain the waiver of statue of limitations to ,me please? Thanks
Charles Edward Green
Charles Edward Green answered on Nov 7, 2021

A statute of limitations is the time limit on how long you have to bring a lawsuit. In a personal injury case the time limit is typically three years from the date of accident, but there are other shorter time periods that could apply.

A waiver of the statute of limitations is when a...
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1 Answer | Asked in Civil Litigation, Legal Malpractice and Probate for New York on
Q: I’m looking to have a revival or waiver of a statue of limitation and I have some questions. Hope you can help.
Roy Warner
Roy Warner answered on Oct 27, 2021

There is no question to answer.

Revivals of causes of action are by statute. They are few and far between in NY; they are remedial legislation.

The waiver of a statute of limitations is rare, but does happen. These waivers are based upon an equitable principle whereby the...
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1 Answer | Asked in Probate for New York on
Q: Is it true that two-thirds of the siblings have to agree on disposition of body if a single person w/no kids dies in WA?

Parents deceased. There seems to be no will or designated agent.

Tim Akpinar
Tim Akpinar answered on Sep 22, 2021

Your question remains open for a week, and looks like it could involve Washington State law. There's no guarantee all questions are ultimately picked up on this board, but you could try reposting under Washington. Good luck

Tim Akpinar

3 Answers | Asked in Estate Planning and Probate for New York on
Q: My dad passed on August 20 2021 and my mom passed on June 27 2021, i live in my dads house and have since 1995 this has

been my permanent residence and i have two children who reside here and are registered to school here and have been since birth. the house was bought between my mom and dad, i have step siblings who have a diff mom, is there anyway they can take over this house through probate? my dad didn’t have... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on Sep 5, 2021

When there is no Will, it is called Administration. But it works similarly to Probate. If an estate has not been established yet, one will probably be needed. If the house was in both their names and was bought when they were married, the survivor of the two would be 100% owner; your dad it... Read more »

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1 Answer | Asked in Banking and Probate for New York on
Q: Person not participating in inheritance procedures.

My brother refuses to be involved in signing papers needed regarding my fathers estate. My mother’s bank accounts are frozen and they have a house in PR. Also my father sold his car to his brother in PR before dying but no title was signed my brother refuses to sign an affidavit giving up his... Read more »

Elaine Shay
Elaine Shay answered on Aug 2, 2021

If a required family member will not sign waivers, the party seeking to file the Petition for Probate or Administration will be required to seek the service of Citations from the Court.

1 Answer | Asked in Probate for New York on
Q: Can you transfer a Deed to property of the deceased parent to her children prior to filing for Probate in New York.

There is no surviving spouse. Can the IRS or any creditor place a lien on the deceased property prior to filing for Probate? What responsibility does the executor have under those circumstances?

Michael David Siegel
Michael David Siegel answered on Jul 6, 2021

You must do probate to transfer the property. Claims from the IRS and others will get adjudicated in the probate. If there are large tax debts, the property might need to be sold to pay them. The executor would have personal liability for transferring property in the face of unpaid debt.

1 Answer | Asked in Probate for New York on
Q: What is a letter of citation and renunciation and consent to appointment of administrator?
Michael David Siegel
Michael David Siegel answered on Jul 1, 2021

These are actually two forms. There is a waiver and consent, and a renunciation. A waiver and consent applies to the petition filed. If you sign, the petition will be granted. Renunciation is when a named fiduciary in a will does not want to act, and resigns.

1 Answer | Asked in Probate for New York on
Q: Equal heir - before the house is sold, do I have rights of entry to review household items to be chosen from?

The house is left equally to all heirs, to be sold and cash distrusted.

The will notes all house hold items are to be equally divided. If we are in disagreement, the the executor can devises a system of distribution of the house hold items.. if there is still a disagreement, then the... Read more »

Bonnie Lawston
Bonnie Lawston answered on Jun 25, 2021

The executor is responsible for the administration of the estate. Thus, the executor can prohibit entry to the house if there are concerns that something will be taken without permission. If the item has a monetary value it should be paid for even if it’s an heir that wants the item so the... Read more »

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