His children, 4 boys (1 being my husband) were never read his Will. He personally told my husband and 1 of my brother-in-laws 1 1/2 yrs before his death, that there were four accounts in the boys names, that he opened for them. Also, he said that the house in NY and the house in Fla. were to be split 50/50 (50% for his 2nd wifes son), the other 50% split 4 ways. I know that the properties automatically go to the surviving spouse, but what about the accounts he had opened for them? His wife also mentioned them to us the day of his wake, but it was never mentioned again. My husband feels awkward approaching her on this. We wanted to give her sometime, but it has been 1 year now. Is there anything we can do? Could his wife had eliminated them somehow? Suspicious-her niece is her attorney.
Estate Planning Attorney
There's a lot of assumptions in this question, and it seems that the best advice to give is to consult an experienced probate attorney. However, let me address some of the assumptions that may or may not be correct:
1. "I know that the properties automatically go to the surviving spouse." This only applies to properties with a "right of survivorship." In New York, tenancies by the entirety ("to X and Y, as husband and wife" or similar) and joint tenancies with right of survivorship ("to X and Y as joint tenants with right of survivorship") have this right--if one of the owners die, the survivors share in the decedent's share automatically, without the need for probate.
If the property is held in other forms, such as a tenancy-in-common, or actions have severed the joint tenancy between the deed and the death, probate is required to bequeath the real property interest. And properties are distributed by the terms of the will, subject only to a surviving spouse's right to take an elective share--a statutory right to a minimum amount of property, so that the dead spouse can't screw the other out of an inheritance.
2. The accounts. Banks permit payable-on-death accounts, which are actually a form of living trust account. These are usually named in trust for/ITF . If the accounts that your father-in-law opened were named this way, the assets in these accounts skip probate and are the boys' property.
3. The wait. If the will nominated an executor, that executor can start the probate process. If an alternate executor was named and the first executor is unreasonably failing to complete his or her duties, then the alternate can start probate. If you are an interested person in the estate (someone entitled to an inheritance if there is no will), you may also start probate but should indicate where the will is. The will still controls, but you can request that the executors either move forward or renounce the executorship so that you or another interested person can take over.
Once again, because of these issues, I must advise you to seek local probate counsel. Best of luck!
Brendan James Gilbert
The Gilbert Law Office, PC
5500 Main Street, Suite 100
Williamsville, NY 14221
I am licensed in New York only.
Criminal Defense Attorney
I'm sorry, but it's time for your husband to get over his awkward feelings and ask outright about the accounts. If they were in joint names with your husband's father, then they would automatically become the chidren's. He could check to see if any banks in the area around his late father's home had any accounts in his name.
Also, speak to an estate attorney about the matter just be sure.
This answer is not intended to form an attorney/client relationship and any answers do not constitute direct legal advice and should not be followed unless and until you have spoken with an attorney of your choice.
There is no sense repeating the ideas expressed so well by the prior attorneys, except to say that this situation is crying out for your husband to get an estates attorney to represent his interests immediately. This is a way overdue step that needs to be taken before it is too late. There are just too many open issues and uncertainties. Get an estates attorney in the state where his dad died and do it NOW!
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