Legal Question in Wills and Trusts in New York

my father passed away and there were 3 children, 2 biological and 1 step-daughter-never adopted. in his will he indicated the 3 survivors would receive 1/3 of the estate each, In the probate form (which we are NOT contesting the will) , in question 5. The decedent was survived by distributees classified as follows: [Information is required only as to those classes of surviving relatives who would take the property of decedent pursuant to EPTL 4-1.1 and 4-1.2. State the number of survivors in each class. Insert “NO” in all prior classes. Insert “X” in all subsequent classes].

1. NO Spouse (husband/wife).

2. □ 2 Child or children and/or issue of predeceased child or children.

[Must include marital, nonmarital, adopted, or adopted-out of child under DRL Section 117]

3. NO Mother/Father.

4. □ 1 Sisters and/or brothers, either of the whole or half blood, and issue of predeceased sisters

and/or brothers (nieces/nephews, etc.)

5. X Grandparents. [Include maternal and paternal]

6. □ X Aunts and/or uncles, and children of predeceased aunts and/or uncles (first cousins).

[Include maternal and paternal]

7. □ X First cousins once removed (children of predeceased first cousins). [Include maternal and paternal]

Did I answer the question correction, by putting 1 in choice 4? If not where do I indicated the step-daugther as a distibutee since she is NOT considered child or children in choice 2.

Asked on 9/14/21, 7:07 am

1 Answer from Attorneys

Richard Bryan Richard Bryan Attorney PC

Please accept my condolences on the loss of your father.

Once you've answered the second question, you stop processing the rest of the questions in that section. All the answers after the second should be "X", because you've already told the court who the distributees are.

The word "distributee" is a legal term which includes children of the blood and adopted children. The step-daughter is not a distributee; she is a "legatee," which means a person who inherits a legacy under someone's Last Will and Testament.

I would stop calling the person a "step-daughter" in any legal papers also, because that word has a legal definition which is different than what people would use in common conversation around the dinner table, for example. It's going to create confusion. As it is, you're going to have some trouble if the Will calls this person a 'survivor' and itemizes her name along with dad's natural children. Some explanation by Affidavit or otherwise is going to be required, at least.

Once again, please accept my condolences on the loss of your father.

Good luck.

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Answered on 9/14/21, 8:57 am

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