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If a will states that the estate should be divided between 5 children, does that mean equal shares? Will filed in NJ

Absecon, NJ |

If a lawsuit comes to pass after will has been settled, does the executor still have authority or does it go to all the heirs equally because they were named on the suit? Is there a foolproof way to guarantee that the monies from the law suit will be divided equally by the 5 parties involved,being that 3 live in NJ, 1 in NY and ! in Florida, and what would be the fee?

Attorney Answers 3


  1. I interpret your posting as asking for us to construe a will that you have reviewed and which none of us here at avvo have ever seen. I don't know what the will says, so I can't advise you.

    Obviously, the will can be designed in a variety of ways -- it can give equal shares to all five children or it can make those shares decidedly unequal. And the matter gets more complicated if any of those five children is no logner alive. (This, however, does not sound like it is the case, because you indicate the states in which these five children reside).

    I was confused by your question as to what happens if "a lawsuit comes to pass." I am not sure what you are asking. Similarly, I was confused by your asking "what would be the fee."

    Usually, the executor hires counsel, who can answer all reasonable questions. While the counsel for the estate is not obligated to provide information to the beneficiaries, there often is no impediment to asking simple questions about the administration of the estate.

    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.


  2. I THINK what you are asking is in relation to a wrongful death suit or similar litigation. That kind of action can generally only be maintained by an executor or personal representative. The estate cannot be closed until all lawsuits are resolved. So if the executor no longer has authority, I do not think you will be able to maintain the suit.

    Once the lawsuit is decided or resolved, the parties can either agree on a distribution of the proceeds or the judge can decide that. Many times, the parties agree to follow the distribution scheme of the Will, but this is not required. There is no foolproof way to do anything, here. Either the parties agree or the court will decide. If the parties cannot agree, then having a lawyer on your side can be helpful. I would expect that you would pay an hourly fee for the lawyers time in negotiating the best settlement you can get. (Most of the time, in my experience, the parties agree on the distribution, so this is not necessary).

    The location of the parties is not relevant in terms of the settlement, but it could make it practically difficult for negotiations.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!


  3. The will could call for the estate to be divided equally, but it may not. Unless a trusts and estates lawyer reads the will, any advice would be speculation.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

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