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

Asked over 1 year ago - 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. Michael S. Haber


    Contributor Level 20


    Lawyers agree

    Answered . 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... more
  2. James P. Frederick

    Contributor Level 20


    Lawyers agree

    Answered . 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. ******... more
  3. Lawrence A Friedman

    Contributor Level 18

    Answered . 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... more

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