the deceased sibling has hired a lawyer to handle brothers' affairs, but lied about no children. What to do?
Criminal Defense Attorney
Is there a spouse? Here is the statute: N.Y. EPT. LAW § 4-1.1:
The property of a decedent not disposed of by will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. Distribution shall then be as follows: (a) If a decedent is survived by: (1) A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation. (2) A spouse and no issue, the whole to the spouse. (3) Issue and no spouse, the whole to the issue, by representation. (4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents. (5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation. (6) One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving maternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents. (7) Great-grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of grandparents or grandchildren of grandparents, one-half to the great-grandchildren of the paternal grandparents, per capita, and the other one-half to the great-grandchildren of the maternal grandparents, per capita; provided that if the decedent was not survived by great-grandchildren of grandparents on one side, the whole to the great-grandchildren of grandparents on the other side, in the same manner as the one-half. (b) For all purposes of this section, decedent's relatives of the half blood shall be treated as if they were relatives of the whole blood. (c) Distributees of the decedent, conceived before his or her death but born alive thereafter, take as if they were born in his or her lifetime. (d) The right of an adopted child to take a distributive share and the right of succession to the estate of an adopted child continue as provided in the domestic relations law. (e) A distributive share passing to a surviving spouse under this section is in lieu of any right of dower to which such spouse may be entitled.
I am a former federal and State prosecutor and have been handling criminal defense and personal injury cases for over 17 years. The above answer, and any follow up comments or emails, is for informational purposes only and not meant as legal advice.
The statute that Eric posted lists who inherits and in what order if no will exists. If there is no spouse, then under (3), the descendants inherit. The petition to the Surrogate’s Court requires the identification of those who would inherit. It is part of the public record, so you can obtain a copy. Whoever is entitled to protect their interests should retain counsel.
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4 lawyers agree
If your uncle died unmarried and survived by one child, the child would be his only distributee under New York's intestacy laws (EPTL 4-1.1 see link below). The child is the only person qualified to administer the estate (SCPA 1001 see link below). However, if the child is a minor (under 18) the child's court appointed Guardian of the Property would become the administrator. If the sibling lied to the court and obtained letters of administration, his or her appointment is subject to revocation. It is important that your uncle's child or the child's guardian retain the services of an estate litigation attorney as soon as possible.
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.
6 lawyers agree
An answer to your question is that, assuming you are the one and only child, there is no surviving spouse, and no unusual facts that disqualify you as an heir at law or administrator, you are the sole distributee and inherit all of your father's intestate assets. And you are also the person with priority to obtain letters of administration of your father's estate. It seems to me that you would be well served to hire an experienced estate litigation attorney promptly. Alternatively, you could present yourself to the attorney your uncle hired - bring your birth certificate or other documents proving you are the child of the decedent. The attorney would have to stop handling your father's affairs because you, as the sole distributee of your father's intestate estate, have (a) priority to become the administrator of the estate and (b) the right to all the assets that pass through intestacy. If the attorney represents to the court or anyone else that your uncle is the heir at law or rightful administrator, the attorney would be putting his or her license at risk. If your father had assets that do not pass through intestacy, like a life insurance policy or IRA with a named beneficiary, then your uncle may be working on finding out about those assets to see who may be the designated beneficiary(yes). We are talking about a $2MM estate; get an attorney to help you. - Ian W. MacLean
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Personal Injury Lawyer
Yes, the sole child of the deceased is entitled to inherit everything left by their father. The sibling's lawyer needs to be informed that they were lied to about the absence of any children. Call the lawyer. Write to them if you have to. Write to the Surrogate's court in the county in which the deceased last resided (Administration department). Go in person if you have to. Retain a lawyer to help you if you don't want to navigate the system yourself. This is outrageous.
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Estate Planning Attorney
I agree with all of the prior answer answers. As to what to do, the Decedent's child must immediately file an administration petition with the court. Included with those papers, in the additional relief section you should ask the court to revoke the letters issued to sibling. The court will likely set a conference. Also it will be on notice to the sibling to have time to object. Depending on the county, the court may put a stay in place or require you to do a separate osc or give a short citation date and conference it asap. Speak to a lawyer immediately before transfers occur.
I think you have your answer if you've read my learned colleagues answers above. I'll sum it up: if you are the child, run to a probate/estate litigation attorney. If you are a family member who wants to see the right thing done, grab the child by the hand and take them to a probate/estate litigation attorney. Deal with it immediately before it gets worse.