Legal Question in Wills and Trusts in New York

Father passed away, what am I entitled to?

My father passed away 6/16/04. He was living with a woman for years but I am not sure they were married. They had a son. The home he lived in is in his name only. I have 2 siblings, I am the oldest. What are our rights to his estate. He did not have a will.

Thank you

Asked on 10/17/04, 11:07 am

3 Answers from Attorneys

Norman Nadel Norman Nadel, Esq.

Re: Father passed away, what am I entitled to?

In New York, in the absence of a Will, the surviving spouse takes the first $50,000 and one half of the balance of the estate. The children share the rest.

If there is no surviving spouse, as you thought, then the four children share equally.

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Answered on 10/18/04, 8:40 am

Re: Father passed away, what am I entitled to?

If your father was living in NY when he passed away, then NY law will apply and the previous response answers your question. If you have additional questions, please feel free to contact me.

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Answered on 10/18/04, 9:07 am
Walter LeVine Walter D. LeVine, Esq.

Re: Father passed away, what am I entitled to?

In the event there was no Will, your father's estate passes by intestacy (dying without a Will) and the laws of the state where he was residing when he died controls what happens. In most cases of intestacy, both the spouse and children participate, with the amounts or percentages determined by the applicable laws (most of which are on line from the Surrogate's or Probate Court's web site). You may encounter several problems, depending upon whether or not the live-in was actually married to him, or can claim under some law a common-law marriage. This may give her a share of the estate. If their child was acknowledged to be your father's child, he shares in the intestate estate. If there was no wife, the children can apply for administration of the estate, and all children are equally entitled to the appointment, although one or more can waive their right to appointment. If the other child is a minor, a guardian ad litem will probably have to be appointed also to represent him in the proceeding. If the state of residence was Florida, it gets slightly more complicated, as Florida does not permit informal estate proceedings and everything there must be handled through a Florida attorney. I could recommend a Florida probate attorney if you need one. Be aware that you will encounter bonding costs for the administration, attorneys fees, fees for the guardian (if needed) and a possible contest by the girlfriend, court filing fees, etc. This could get expensive and all fees and costs are paid by the estate. At worst, you are entitled to 25% of the estate, or less if the girl friend is actually a wife. Plus, if she is a wife, she may have rights to live in the house, even if her name is not on the Deed, and also a claim against the estate as his widow, for a statutory share of his estate. All of this should be reviewed by the attorney you use for the estate.

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Answered on 10/18/04, 11:19 am

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