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Is there a time limit on filing for probate if you can't find a will?

Norwich, NY |

My father passed 6 months ago and all property was in his name. His wife has yet not filed for probate. Is there a time limit?

Second question: Do you have to have an original will to file in surrogate court? The day he found out about his terminal illness, he drafted a will with an attorney, but took the original and never filed it. His wife can not find it, so I believe he destroyed it.

Last question: In New York, if there's no will, all properties go to the spouse and siblings. Since the rental property was still in my deceased fathers name, are the siblings entitled to the rental income that the spouse is collecting? Also, are his children entitled to use the property (lake house) until a court decision?

Attorney Answers 4

Posted

There is no time limit on petitioning for probate of a will. If you can't locate the original will, there is a presumption that it has been revoked by destruction. You would have to rebut that presumption in any proceeding to probate a copy, not an easy task. When a person dies intestate (without a will ) New York's law of decent and distribution provides that the surviving spouse receives $50,000.00 and one-half of the balance of the decedent's estate. In addition, the surviving spouse id entitled to certain exempt property of the decedent, $25,000.00 in cash, a vehicle worth up to $25,000.00 and other personal property such as household furnishing worth up to $20,000.00. This only applies to property held just in the deceased's name. Property held jointly or with a designated beneficiary goes to the joint owner or beneficiary.

The answer to this question should not be construed as legal advice and does not create a lawyer-client relationship. You should consult a lawyer before taking any action regarding your matter.

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Posted

Since the estate is in intestate, do I have the right as a child to a portion of rental income and use of properties until this is settled?

Posted

In NY I don't believe the there is a specific statute of limitations to commence probate, but as with most things- the sooner the better.

Yes, you have to file an original will in surrogates court as a general rule. As with most general rules there are always exceptions. With the facts given, the attorney may have a conformed copy that the court may accept, but this is not a guarantee. If not the estate will pass by operation of law.

NYS has specific laws as defined in the EPTL to what happens when the decedent passes without a will. It depends on how the family tree looks at the time of death.

Please contact an Estates/Probate attorney and he or she will guide you through the process.

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Posted

the attorney involved called it a draft will so I don't beleive there will be an issue there. Now since there is nothing filed as his child am I intitled to rental income and use of property until she files?

Posted

If there's no will, it's not a probate, it's an administration. All his property doesn't automatically go to spouse AND children, there's an order that the courts will follow, starting with spouse. If no spouse, then children. If no children, then siblings... and it goes out from there. The court will appoint an administrator, likely his wife. You will have the right to object to the distribution, and depending on the facts, you might be successful but chances are she gets it all.

I may be guessing or not licensed in your state. No atty/client relationship exists.

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Posted

the wife has not filed in probate but has torn their home down and build a new one. Which leads to - does she have the right to all rental income and do i have the right to use property since nothing has been done. The lawyer which wrote the will called in a :DRAFT. There is the issue the wife has not filed anything in court.

Asker

Posted

nor has she filed for adminstration

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Posted

correct, no court proceedings. All deeds are in my fathers deceased name only. Do I have the right at this point to portion of rent and use of properties?

Posted

My colleagues all give you good advice. I just wanted to briefly expand on one issue. As you were advised, if an original will cannot be located, there is a presumption of revocation. That's because the "ceremony" to revoke a will is no more complicated than tearing it up and putting it in the trash. NY does have a procedure to probate a lost or destroyed will, but in the absence of extraordinary circumstances, the Surrogate's Court is likely to find that any such proceeding has not overcome the presumption of revocation.

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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