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Daughter Passed Away, No Will

Discussion in 'Estate Administration & Probate Court' started by KennyO, Mar 25, 2021.

  1. KennyO

    KennyO Law Topic Starter New Member

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    My daughter recently passed away without a will. She has 2 children aged 5 & 8 with different fathers. She was single. I would like to be named executor of her estate so as to distribute her assets to the 2 children. She had a life insurance policy naming her children as beneficiaries, a 401k with a balance of less then $5000. & some other monies owed to her from her employer, income tax refunds & a bank account which I have no idea of the balance. She did not own real estate property. I have been advised that the father's of the children will have to be appointed administrators on behalf of their daughter & a court will not allow me be to be named executor until that step is taken. Is this true & any advise will be very much appreciated on how to proceed.
     
  2. army judge

    army judge Super Moderator

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    If a person dies without leaving a Last Will and Testament in NY state, it is said the person died intestate.

    When a person dies intestate, that person's property is distributed according to NY law.

    In New York, that law is found in EPTL 4-1.1 Descent and distribution of a decedent's estate .

    Who gets what depends on who the living relatives are and their relationship to the Decedent, the person who died.

    The family members who are entitled to a share of the Decedent's estate when there is no will are called "distributees" in NY state.

    If the Decedent has a spouse without children the spouse inherits everything.

    If the Decedent has children without a living spouse, the children inherit everything!!!

    About The Decedent's Children

    For children to inherit from their parent(s), New York State requires that there is legal parent-child relationship.

    In most cases this is not an issue but it's not always clear.

    Adopted children will inherit just like a biological child.

    Foster children and stepchildren will not inherit unless they were legally adopted.

    Children born after the Decedent dies will inherit.

    Children born outside of marriage, also called non-marital child, will inherit from a male parent.



    Who Can File An Estate Proceeding???

    If there is no Will, then there is a rule for who can file for administration or a small estate.

    In general, the "closest distributee" can file for administration or small estate.

    This means that the Decedent's husband or wife has a prior right over the Decedent's children to file.

    If the Decedent didn't have a living husband or wife, then the Decedent's children have equal rights to each other.

    If the relative with the prior right does not want to administer the estate, then they can sign a renunciation and waiver.

    In the same way, if relatives have equal rights (such as a Decedent's son and daughter) in an administration proceeding, then the Decedent's children sign waivers.

    This does not mean that they are giving up their share of the Decedent's estate.
     
  3. Zigner

    Zigner Well-Known Member

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    I'm sorry for your loss.

    The life insurance policy will be distributed directly to the children (who will need some sort of financial guardian appointed to receive it on their behalf). That is not a part of her estate that you will be distributing. It is quite likely that the 401k also had a beneficiary designated, which means that passes outside of her estate as well.

    Since it's quite likely that your daughter's personal property (including money) is less than $50k, then a small estate process may be the appropriate avenue in this situation. See Small Estate / Voluntary Administration | NY CourtHelp for more information. I wish you and your grandchildren the best.
     
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  4. Zigner

    Zigner Well-Known Member

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    To summarize what Army Judge posted above: The kids get everything that's a part of the estate. You may be able to be appointed administrator of the estate, but there will likely need to be waivers signed on behalf of the children.
     
  5. zddoodah

    zddoodah Well-Known Member

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    The life insurance money will likely be paid to the fathers of the two children. It's unfortunate that your daughter set it up this way because it could get to be a big mess.

    Advised by whom? As phrased, it doesn't make much sense.

    By the way...has the paternity of each of the fathers been established? If so, how was it established? Note that "his name is on the birth certificate" doesn't answer the question. Also, have you spoken with the two fathers? Are they actively involved in the kids' lives?

    You need to speak with a local probate attorney because the situation could be somewhat messy. It's possible that your daughter's probate estate might not have sufficient assets to make formal administration worthwhile (and this would be particularly true if she had any significant debt).
     
  6. Zigner

    Zigner Well-Known Member

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    This is a good point, and I should use it to clarify my earlier post. The kids are entitled to whatever is in the estate after the estate's debts are paid.
     
  7. KennyO

    KennyO Law Topic Starter New Member

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    Paternity has been established & is not in question. Why would the father's of the children inherit the life insurance benefit when the children have been named as beneficiary? We were hoping to put the money into a college fund that would not be touched until they enroll.
     
  8. Tax Counsel

    Tax Counsel Well-Known Member

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    The fathers of the kids won't be entitled to the insurance benefits. (Life insurance proceeds are not technically "inherited".) But as the guardians of the children they will be the ones who would manage the money the kids get for their benefit until they are adults.
     
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  9. zddoodah

    zddoodah Well-Known Member

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    I didn't write that the "father's [sic] of the children would inherit the life insurance benefit." What I wrote was that "[t]he life insurance money will likely be paid to the fathers of the two children." Why? Because minors do not generally have the right to own property. Money that is left for a child (whether in the form of an inheritance or a life insurance benefit) is typically paid to the child's parent(s) or legal guardian(s) (in this case, each child's father) to hold and use for the benefit of the child. For all practical purposes, the father of each child will be entitled to use the money to offset the cost of raising the child. If there is money remaining when the kids reach the age of majority, it would be payable to them.

    P.S. Each father should make sure he applies to the Social Security Administration for whatever death benefits are available to his kid.
     
  10. KennyO

    KennyO Law Topic Starter New Member

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    I want to thank everyone for responding to my questions. We're just starting to come to grips with the reality of losing our Daughter which was sudden & totally unexpected. The girls are our main concern now as we try to figure out how to do what is best for them. I know if I have any more questions I can post here & I'll get some good advice. Thanks again & be safe!
     
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