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New York Probate Questions & Answers
1 Answer | Asked in Contracts, Estate Planning, Family Law and Probate for New York on
Q: How does an Anti-Lapse Statute in NY apply, if two named relatives listed passed away with no children or wife?

my great aunt left a will naming nieces and nephews.

only my mother's immediate family - two brothers and sisters were in close contact and took active care of her. i.e shopping. hospitalizations from repeated falls, helping her walk and treating her infections.

the other... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on May 24, 2020

Anti-lapse statute in NY allows children of named beneficiaries to receive gifts. Since the deceased beneficiaries died without children it doesn’t apply. Most properly drafted Will address that contingency. An attorney would have to see the Will to properly advise in this case.

2 Answers | Asked in Probate for New York on
Q: how can I get access to my mom's estate?

my mom died and 2 long time family friends got power of attorney before her passing. they got POA when she was already sick with dementia this was done without me knowing. they put her in a nursing home without me know and wouldn't tell me where she was until she was there a month and a half.... Read more »

Michael David Siegel
Michael David Siegel answered on May 21, 2020

You need to petition to be administrator of her estate and then sue the friends.

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1 Answer | Asked in Probate for New York on
Q: My grandmother passed away and it’s been a couple weeks and I’ve heard nothing of a will.

My grandmother told me in confidence that she had a will and left nothing to my father because she didn’t want the wife getting anything. It’s been a couple weeks and I’ve heard nothing about it. I asked family that were close to her but one gave me a weird bs answer and my dad made it seem... Read more »

Michael David Siegel
Michael David Siegel answered on May 11, 2020

You cannot do anything without a will. Your father is next of kin, not you. If they destroyed the will then you are out of luck. If you could even get a copy you would be better off.

1 Answer | Asked in Estate Planning and Probate for New York on
Q: My father passed away on April 3, 2020. I only discovered then that I had been disowned over a phone call made in 2010.

This news had been kept from me since 2010. The terms of the IRA (part of the trust) have been changed. The terms of an irrevocable trust have also been changed. The family attorney (Welch & Zink, of Corning, NY) no longer represents the family in favor of ". . . a close friendship with... Read more »

Lawrence Allen Weinreich
Lawrence Allen Weinreich answered on May 5, 2020

This is not a family law question, it should be posted in the trusts and estates section. In addition, you should discuss that any lawyer the issue of the "family" attorney who now only represents your brother as there may be a conflict depending on the circumstances and facts.

4 Answers | Asked in Probate and Estate Planning for New York on
Q: what happen if John bequeathed a prized stamp collection in his friend’s name, Travis. However, prior to John’s death,

John sold the entire stamp collection to a museum. The will was not altered to reflect the change in ownership.

Lawrence Allen Weinreich
Lawrence Allen Weinreich answered on Apr 28, 2020

It doesn't matter that the will wasn't changed, the will is effective as the date of death as to what is in John's possession at that time. Since the stamps were no longer John's for whatever reason, the bequest is like it never was.

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2 Answers | Asked in Estate Planning and Probate for New York on
Q: Is the sole survivor of a family entitled to all family photos now distributed to 2nd and 3rd generation family members?

family album pictures saved over the years are now in possession of nieces and nephews. as the sole survivor of my family, do I have a legal right to these pictures, many of which I have only a memory about. And if so, what could I do to get them back? Included from memory are pictures of my... Read more »

Lawrence Allen Weinreich
Lawrence Allen Weinreich answered on Apr 26, 2020

The question is who had the pictures originally. If it was your parents then you may be entitled to them, if the pictures were in someone else's possession and was given by them to the nieces & nephews then you have no claim. The best thing to do is ask for copies of the pictures be made for you.

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1 Answer | Asked in Probate for New York on
Q: My mother passed away twelve years ago and I was not in good mental health and I sign my rights over to my aunt I feel

I feel she did not do the right thing and she didn't go by what the will said

Tim Akpinar
Tim Akpinar answered on Apr 21, 2020

I'm sorry your post remains open for three weeks. At this point, you could try reaching out to Probate - Estate Planning attorneys here on this site, or ones you find through your own searches to see if it is possible to arrange a free initial consult to briefly discuss the matter. Good luck... Read more »

2 Answers | Asked in Divorce, Estate Planning, Probate and Tax Law for New York on
Q: My father passed away last year and he is married to his wife who iam not in great terms with because of her infidelity.

Can I file his taxes or should I leave it alone? Is it legal for me to do it since he is married. He never gave consent for any specific individual to file taxes as we were in the process of doing so while he was diagnosed with cancer. Rapid divorce was not as rapid as his diagnosis unfortunately... Read more »

Michael David Siegel
Michael David Siegel answered on Apr 20, 2020

Only his estate representative can file his taxes. The wife is due the first $50,000 of his estate unless he had a will, so unless the refund is more and there are other assets, there is no need to do it.

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2 Answers | Asked in Probate for New York on
Q: In NY, who can file for probate of will? Is it only the executor or can a beneficiary (i.e. child of deceased) file?

Need clarification about who must file for probate following a relative's death. Relative in question has multiple children and one of the children is named executor of will. However, I want to know if any beneficiaries in the will can initiate probate.

Elaine Shay
Elaine Shay answered on Apr 14, 2020

Generally, the individual named as executor files the Petition to probate the Estate with the Surrogate's Court. If the Executor fails to act in a timely manner, a beneficiary may instead be entitled to file.

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1 Answer | Asked in Probate for New York on
Q: Thanks for responding Michael, It was held by my stepmother and her lawyer.
Michael David Siegel
Michael David Siegel answered on Mar 26, 2020

If you want to hire me to get involved and read the papers you have let me know. Without seeing documents I cannot determine what happened enough to give a legal opinion.

1 Answer | Asked in Probate for New York on
Q: Where can I get information about what’s going on with this. And how do I learn exactly what’s going on.

My father passed away March 17, 2018. He placed my brother and I as the beneficiaries to his NYCERS pension. My stepmother is fighting it, trying to get her elective share which we are ok with, we recently got a letter from her lawyer with a title notice of settlement granting elective share.

Michael David Siegel
Michael David Siegel answered on Mar 26, 2020

A notice of settlement is a proposed court order to be entered after a court hearing. You shoud have been noticed of a hearing. It may be nothing other than granting what you agreed to anyway, but only a lawyer seeing the paperwork could know. Has NYSERS held the money or do you have it?

3 Answers | Asked in Probate for New York on
Q: My father recently passed away in New York we believe without a will.

My father recently passed away in New York we believe without a will. At least we have not been able to locate one. He left a considerable estate to which myself and my sister are the only airs. We were wondering what we need to do next he had several CDs in three local banks to which total almost... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on Mar 15, 2020

You must petition the Surrogates Court for Letters of Administration in order to be given the power to collect and distribute assets. If you are not going to be present in NY you should retain an attorney to assist you.

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3 Answers | Asked in Estate Planning and Probate for New York on
Q: No Will. uncle died in New York. No kids. His spouse, Ben, passed. He has a niece and nephew. Who has claim to his asset

His only brother died before him a week ago and left my uncle his property and assets. All his siblings are dead. Niece and nephew, the only surviving children of his siblings, want to know who has right to assets. The niece took care of my uncle prior to his death and has her name on his bank... Read more »

Lawrence Allen Weinreich
Lawrence Allen Weinreich answered on Mar 13, 2020

This is an estate question not Family Law. There are many variables here. One question is who passed first your uncle or his brother. If uncle died first his brother's estate may not come to your uncle - it depends on what the will says. In most cases, it would provide that if uncle died... Read more »

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1 Answer | Asked in Estate Planning and Probate for New York on
Q: How can I settle my paternal Uncle's estate, in Puerto Rico, from NY, after having paid a Lawyer who disappeared?

My father's eldest and last surviving brother, passed away in December of 2016, leaving behind a property & bank accounts, which have gone unclaimed. I helped my Dad find a Lawyer who, was paid a retainer of nearly $3000 but, did nothing for which he was paid -- in fact, he has ignored my... Read more »

Tim Akpinar
Tim Akpinar answered on Mar 8, 2020

As a first step, you could contact an attorney in Puerto Rico who handles Estate Matters. You could also repost your question under Puerto Rico (follow the link that says "Show More States.") There are attorneys who practice in Puerto Rico who are active on this Q & A board. You could... Read more »

1 Answer | Asked in Arbitration / Mediation Law, Elder Law and Probate for New York on
Q: My mother lives in Florida, my brother in Virginia and I live in NY. When mom lived in NY I was herPOA and co executor

Long story short she moved to Fl to be closer to my brother ( he lived there at the time) and for the weather. Moms health isn’t always the best. He took a job and moved to VA about 2 years later. He handed he major investments, he did some foolish things with her money, “ he “bailed”her... Read more »

Nina Whitehurst
Nina Whitehurst answered on Mar 4, 2020

Start by reporting the suspected financial abuse of an elder to the Adult Protective Services agency closest to your mother.

Beyond that, you will need to find a fiduciary litigation attorney to sue your brother to have him removed as your mother's attorney in fact and to return the...
Read more »

2 Answers | Asked in Estate Planning and Probate for New York on
Q: Hi:The father of my children bought a property in PR cash and passed away with out doing a deed. What happens now

We where never married, we had 2 children together. He has other kids from 2 different women. One never allowed him to see his child but is claiming money

Howard E. Knispel
Howard E. Knispel answered on Feb 20, 2020

If he owned the property he must have a deed. I assume you mean he does not have a will. Was he married at the time of his death? An estate action must be filed for intestate succession to determine the inheritence rights. Depending upon where he died, someone need to file the papers there and in... Read more »

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1 Answer | Asked in Probate for New York on
Q: What is a decree appointing administrator form used for?
Benjamin Z. Katz
Benjamin Z. Katz answered on Feb 19, 2020

Official appointment of Administrator by the Surrogate’s Court

2 Answers | Asked in Criminal Law, Estate Planning, Banking and Probate for New York on
Q: Is it illegal for my Dad's Girlfriend of 13 years to use his ATM card after he dies? What law makes this illegal in NY?

My father was declared brain dead on Jan 9th, and passed away on Jan 24th. His girlfriend has made 2 withdrawals using ATM, one of which weeks after death. The DA said that it's not illegal if he gave her permission; but, how can he give permission if dead? They are not married. He died... Read more »

Elaine Shay
Elaine Shay answered on Feb 13, 2020

Regardless of whether you are able to convince the DA to take action, the Estate can commence civil litigation to recover any funds wrongfully withdrawn.

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2 Answers | Asked in Probate for New York on
Q: My sister and I are co-executors in NY. I have the Letters of Testamentary. How do we handle the deed of Mom's house?

She plans to buy out my share and live in Mom's house. There are debts we need to settle yet. Do we wait until we pay off the debts and she pays me. Do we need to file an Executor's deed first?

We also just sent in forms ET-30 and ET-117 with the original letters.

Michael David Siegel
Michael David Siegel answered on Feb 8, 2020

If you are working together, I would do the Executor's deed but just to your sister. Memorialize your deal. It is important to do it right. Real estate title is really critical to get right. When you sell or refinance, there may be no way to cheaply correct errors.

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2 Answers | Asked in Probate for New York on
Q: As executor of my brother's estate...

As I am executor of my brother's estate, my mother asked to have the estate's only property partitioned. My mother and sister-in-law are both beneficiaries and they aren't getting along. The property is pre-marital property that was in my brother's name only and he willed the... Read more »

Benjamin Z. Katz
Benjamin Z. Katz answered on Feb 4, 2020

In this situation, as you describe it, your responsibility as an Executor is to transfer the property to your mother and sister-in-law and that is it. Let either one of them sue the other for partition since they are having the dispute.

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