Linda Stravalaci Grear's Answers

Under NY laws after my death would my wife be forced to pay off my student loans that were incurred before marriage

The loans would be debts of the deceased person’s estate. As long as the surviving spouse did not personally obligate himself / herself to re-pay the student loans (i.e. sign a promissory note), the surviving spouse does not have a personal obligation to use his/her own assets to re-pay the loans. However, the assets of the deceased person’s estate would need to be used to re-pay the debt. An estate’s fiduciary has an obligation to identify and marshal the assets of the deceased person’s...

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Does NY state take a percentage in an estate where there is no will? I am the only child, my mother is a widow.

No, New York State law prescribes who receives the proceeds of an estate (in your example, you would be the sole recipient of your mother's estate which would include anything she held in her name alone) where there is no will but the state takes no percentage (other than estate taxes if due). In your example, the life insurance proceeds pass directly to a named beneficiary (NY State law has no impact on this).

I have been asked to appear at a hearing as a witness to a will. What happens if I fail to attend?

The examination / questioning / testimony of the attorney-draftsperson and the witnesses of a Last Will and Testament is customary in contested probate proceedings. If you are unavailable on the specific date and time of the hearing, you can contact the attorney for the estate and/or the Court directly and request an adjournment to another date. If you have been subpoenaed to appear as a witness and you fail to appear, you can be held in contempt of Court and fined.

Estate planning under NY state law for terminally ill person

Sorry to hear about your father's illness. This can be a tricky situation given (1.) the separation of spouses and (2.) the mortgaged property. First, New York State statute does not allow a decedent to disinherit a spouse (still considered spouses until legally divorced) without the written and acknowledged waiver by the surviving spouse. Therefore, Dad cannot leave everything to children unless Mom consents in writing. Even if Dad does a new Will to disinherit Mom, that will not...