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Can i petition for administration of my father's estate?

Southold, NY |

my father died in 2009 without leaving a will. i have two sibilings, and none of us speak.
his only asset is a house which i want to sell. i understand we each share a third interest and all would split the proceeds.
a. can i file a petition for administration?
b. what will happen if they do not sign waivers, or contest?

Attorney Answers 3

Posted

First, it is unusual to allow more than two years to pass before seeking to administer an intestate estate. Assuming your father was not married at the time that he passed away (and further assuming there are no deceased siblings who died after having children), you and your two siblings would each be entitled to one third of the estate.

You and each of your siblings have equal rights to file a petition for administration. Thus, the person who will be appointed administrator of the estate is likely to be the one who gets to the courthouse first. It doesn't sound, of course, as though this is exactly a race to the courthouse, given the amount of time that has already passed.

Ideally, in a circumstance such as this, there should be cooperation among the three heirs. Unfortunately, however, quite often when a person passes away without a will, there is a lot of in-fighting among the heirs.

If you file for administration, your siblings should be asked to each sign a waiver and consent. If they do, the process of getting letters of administration should be quick and easy.

If, however, one of your siblings (or both) refuse to sign waivers and consents, then a citation will have to be issued, directing the sibling (or siblings) to show cause why you should not be appointed the administrator of the estate. It is at least possible that at least one of your siblings may file objections to your being appointed administrator and may even cross-petition for letters of administration.

There are many ways that an experienced attorney can handle this, in order to try to avoid the administration proceeding from draining the assets of the estate.

You may wish to sell the house (as you indicate that you do), but you and your siblings will each become a one third tenant-in-common of the real property, so that each of you has an equal say. In the absence of cooperation, there are only two possibilities: a partition action (which is usually long and expensive and time-consuming) or a buy-out of two of the heirs by the third heir.

You do not indicate whether there is a mortgage on the house, and, if so, whether anyone has been paying that mortgage. Nor do you indicate whether property taxes, water bills, and the like have been paid. And you do not say whether anyone is occupying the house. These issues could potentially create a lot of problems.

I think that your best bet is to retain an experienced estate attorney, who will be able to walk you through the process and, ideally, will be able to foster a cooperative effort between you and your siblings. An attorney may not be able to bring all of you together in warmth and love, but may be able to adequately explain to your siblings that it is in their best interests to proceed in a cooperative manner.

If you would like, you may feel free to contact me. I'd be happy to help. Of course, there are also many very well-qualified other attorneys here on avvo who could be of equal help to you.

Good luck to you.

Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as rendering legal advice involves the ability of the attorney to ask appropriate questions of the person seeking such advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement. The purpose of this answer is to provide the questioner with general information, not to outline specific legal rights and remedies.

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George Alan Teitelbaum

George Alan Teitelbaum

Posted

but check conflict between this answer and that of Rudolf J. Karvay, below, who says that the real property transfer by operation of law in NY, so no need for probate.

Posted

You will want to stick around for some quick guidance by one of my New York colleagues, and there are many experienced ones that routinely respond to inquiries on this forum.

That said, as an heir of your father, it would certainly stand to reason that you hold a sufficient enough interest in your father's estate to petition for the appointment of an administrator of his intestate estate. Your facts, however, suggest that you should spend some time consulting with a probate attorney near you to address several things.

First, I'm doubtful that the time to make a request has lapsed, but many jurisdictions hold to some very strict timelines. You'll likely want to explain to the attorney that you retained why you've waited since 2009 to address the issues. Second, divided ownership is often very difficult to deal with -- at least in my experience. Often, each interest-holder has a say, and none of them can do much of anything without the consent of the others. Consensus and agreement among your siblings will go quite far to make your life much easier when you take this on.

As for refusal to sign waivers or the potential for a contest, many things could happen. The better question is why your siblings would refuse that this matter proceed in the manner you believe it should. Why would resolving the issues surrounding the house be something that your siblings might actively oppose? These questions, together with a healthy dose of additional facts, should be communicated to an experienced probate attorney near you. Best of luck.

This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship.

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Posted

You may not to to file for administration. In New York, real property passes to the distributees by operation of law. If your father was not survived by a spouse, the distributees would be his children. What this means is that you and your siblings may be the legal owners of the property. If that is the case, you may need to bring a partition proceeding to force a sale of the property. Consult with an attorney to determine the correct course of action.

This answer does not constitute legal advice and no attorney client relationship has been formed. Before choosing a course of action, it is always advisable to seek the advice of an attorney in your area.

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Rudolf J. Karvay

Rudolf J. Karvay

Posted

Correction: You may not need to file for administration.

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