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inheratance/will

Discussion in 'Estate Administration & Probate Court' started by carl potter, Feb 23, 2021.

  1. carl potter

    carl potter Law Topic Starter New Member

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    Jurisdiction:
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    A cousin of mine recently died, he did not have a whole lot of assets and owned a rather broken down house but since it was on a Lakeshore, it increased its value somewhat. He also had about $10,000 in savings. Well he left a handwritten will of sorts saying that he wanted his partner of 16 years to essentially inherit everything. That is fine with me as I think she certainly deserves it being with him so long. Most of my other family members feel the same way except one brother who thinks that property should be split by all of us. Apparently $5000 was used to pay for the funeral

    The lady seems to be a sweet and decent person but very simple.she went to a lawyer who said the written note was not valid and essentially he died intestate. I don't know the qualifications of this lawyer but I do remember going to a seminar about contracts. This was put on by a top lawyer who argued contracts for a large legal office. I remember he said that if you write a contract on a blackboard and sign it and nobody erases it is considered valid....not sure that this applies to Wills but I imagine it would. He also said since this is happened in New York State that there is no common law, but I don't see what that has to do with anything. Can you not write a will and leave your assets to anybody?

    I think the thing is to prove that he wrote it.( I guess that's what's happening with Larry King right now.) So I think in Larry King's situation they are consider taking it to somewhat like a forensic handwriting expert that he wrote it.
    That brother that I referred to is also the executor. No one else wants anything to do with the property and they all feel that the lady deserves the house and any other assets.

    Although I have property in NYS, I really live two states away so can't help very much other than telling the one niece who is trying to fix this that she,should tell this long term partner that she should talk to another lawyer. My Niece says she's reluctant because he has almost no money and was laid off for the COVIT stuff and doesn't look like she'll be rehired.I/most of us do not want to see her cut out.

    Any ideas on this ?
     
  2. adjusterjack

    adjusterjack Super Moderator

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    Contract law does not apply to wills.

    A handwritten will is called a "holographic" will. In NY it is limited by statute:

    2019 New York Laws :: EPT - Estates, Powers and Trusts :: Article 3 - Substantive Law of Wills :: Part 2 - Execution of Wills :: 3-2.2 - Nuncupative and Holographic Wills

    Your cousin's will is not valid. He died intestate and his estate must be distributed under NY's law of intestate succession.

    2019 New York Laws :: EPT - Estates, Powers and Trusts :: Article 4 - Descent and Distribution of an Intestate Estate :: Part 1 - Rules Governing Intestate Succession

    Domestic partners are not included.

    It's up to the heirs to decide unanimously to share their inheritance and file that decision with the court before distribution. Of course, after distribution to the legal heirs, any one of them is free to share his or her own distribution with the partner.
     
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  3. zddoodah

    zddoodah Well-Known Member

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    Let's start by clarifying a few things:

    First, I assume your cousin was not married at the time of his death. Correct? Did he have any issue (i.e., children, grandchildren, etc.)? Were either of his parents living at the time of his death? How about siblings or issue of siblings or aunts/uncles? Any living cousins other than you? If I recall correctly, New York has a screwy rule that cousins on the deceased's mother's side, so please indicate whether you and any other surviving cousins are on the maternal or paternal side.

    Second, was this "handwritten will of sorts" signed by two witnesses who state that they witnessed your cousin sign the will? Note that, contrary to what is in the prior response, a handwritten will can be valid if it otherwise complies with the relevant formalities.

    Third, at the time he made the handwritten will, was your cousin any of these things: (1) a member of the armed forces during a war or other armed conflict; (2) a person who serves with or accompanies an armed force during a war or armed conflict; or (3) a mariner while at sea?

    Fourth, does "partner" mean boyfriend or girlfriend?

    You mean a brother of your cousin?

    That's probably correct, but I'll reserve judgment until you answer the questions I asked above.

    Well...needless to say, I don't know the lawyer's qualifications either, but, at the very least, he graduated law school and passed the New York bar exam, which includes sections on wills/trusts/estates. Moreover, he took (and presumably passed) a first year contracts class, which probably included about 50x as much content as your seminar.

    Seems like you didn't learn much from this seminar. A contract is a mutual agreement supported by consideration. A will is not a contract and is not governed by the same laws.

    What the lawyer presumably meant is that New York does not allow for the formation of common law marriages (there is "common law" in every state). If NY allowed for the formation of common law marriages, then your cousin's girlfriend could try to prove that she and your cousin had such a marriage and use that to claim a share of the estate. However, as the attorney correctly noted, that will not be possible.

    He's not the executor until and unless he is appointed by the surrogate's court to serve in that capacity.

    Just so you know, if your cousin was survived by a brother and no spouse, issue or parents, then you, as a cousin, will have no entitlement to anything and, therefore, no say in how the estate is administered.
     
  4. carl potter

    carl potter Law Topic Starter New Member

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  5. adjusterjack

    adjusterjack Super Moderator

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    No.

    But there is a challenge. Didn't you say that the "executor" doesn't want the partner to get the property?

    BTW, that people knew of the partnership is irrelevant. There was no marriage so the partner doesn't inherit.
     
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  6. zddoodah

    zddoodah Well-Known Member

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    You responded within a quote of the entirety of my prior response. Doing that makes it very easy for folks to miss whatever new information you may have added.

    I asked you to confirm that "partner" means boyfriend or girlfriend. I'll assume now that it does.

    OK...so no surviving spouse or issue, no surviving parents. no siblings (or, presumably, issue of predeceased siblings), no surviving grandparents but there were issue of grandparents (the uncle and cousins, including you and your brother). That means the distribution of the estate is governed by section 4-1.1(a)(6) of the NY Estates, Powers & Trusts Law. That law provides, in pertinent part, that half of the estate goes to the issue of the paternal grandparents by representation and the other half to the issue of the maternal grandparents by representation. In this context, "by representation" means that heirs of different generations are treated the same. For example, if there are three uncles/aunts/cousins on the father's side and four uncles/aunts/cousins on the mother's side, half of the estate gets split three ways by the former group, and the other half gets split four ways by the latter group. Obviously, one would have to know your cousin's full family tree to know exactly how this would play out.

    Then it's not valid.

    Let's dispense with the term "partner," shall we? Since you're apparently not talking about a business partner, it's a term that has no legal meaning or significance (just as the terms "boyfriend" and "girlfriend" have no legal meaning or significance. Your cousin's girlfriend has no legal right to any share of his estate, and it makes no difference whatsoever who know that she and your cousin were girlfriend and boyfriend. My comment about common law marriages was in response to your comment that you didn't understand why a lawyer had told the girlfriend about there being "no common law" in NY.

    Bad assumption. As I mentioned previously, he will not be the executor (I believe "administrator" is the correct term here) until and unless he is appointed by the surrogate's court to serve in that capacity.

    Huh? No, a judge will not consider the invalid will to be valid.

    I don't really understand this incomplete sentence. You've told us that all concerned, except your brother, are willing to abide by the will. As long as your brother does not want that, it won't happen. However, each of the rest of you is free to assign your interest in the estate to the girlfriend. I would suggest that she consult with a local probate attorney about this.

    P.S. On the chance that your cousin resided in Queens County, it will be extremely important to retain an appropriately-connected attorney because the Queens County Surrogate's Court is incredibly corrupt. You can get a wealth of information in this regard by googling.
     
  7. carl potter

    carl potter Law Topic Starter New Member

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    okay, I just got off the phone my niece who is trying to be a peacemaker in this. She informs me that my brother has relented because of the pressure from everyone else involved, that he will not seek any assets. I'm hoping that this might make things simpler? the others involved live several states away and one lives in Florida. Can this be handled without them traveling to New York State? We would still like this girlfriend to get the assets as intended by my cousin. Is there a good way to go about this? Thank you again.
     
  8. adjusterjack

    adjusterjack Super Moderator

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    Someone will have to be appointed by the Surrogate Court as representative of the estate to handle the paperwork involved. Once the debts of the deceased have been paid the representative gets written authorization from all potential heirs renouncing their inheritance in favor of the "partner" and then executes a deed from the estate to the "partner." It would be a good idea to at least have a lawyer handle the deed as it might require certain wording to be done properly and recorded properly.
     
  9. Tax Counsel

    Tax Counsel Well-Known Member

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    A simple disclaimer (renunciation) would not achieve the goal of getting the assets to the girlfriend. The heirs may assign their interests, as zddoodah mentioned earlier, but they should understand that by doing that they are taking their inheritance and then making a gift to the girlfriend. That may end up requiring the filing of a federal gift tax return.
     
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  10. zddoodah

    zddoodah Well-Known Member

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    Yes.

    Whoever lives in NY (i.e., the girlfriend) should retain a local probate attorney. Since the goal is to have the entire estate go to a non-heir, there will be a few complexities here (and let's see if your brother doesn't change his mind when it comes time for him to sign an assignment of his interest in the estate), so the girlfriend will want to be sure everything is done properly.
     
  11. Tax Counsel

    Tax Counsel Well-Known Member

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    Spam posts are not permitted on this site. Even if they were, this is a site focused on US law and you are spamming for a UK law firm, so your post isn't likely to be seen by any potential UK clients. These kinds of spam posts are not a good look for a law firm and I'd avoid any firm using this kind of advertising practice.
     
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  12. Zigner

    Zigner Well-Known Member

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    Fixed it for ya...
     
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