Unfortunately for your aunt, she does not get to choose how her husband's estate is handled and distributed. She apparently does not have rights in the assets. While she does not need to actively cooperate with his kids, she DOES need to turn over any original Will in her possession. Really, it is only a matter of time before his kids figure this all out, anyway. They are likely to be far more understanding and patient with her if she is helpful to them. Regardless, she does not have the ability to legally assert any rights over the assets at this time.
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It doesnt matter what she thinks. She must tell the kids where the will is. If she doens't, under the Surrogates Court Procedures Act, the kids may summon and examine the Court can order her to give the information. If she refuses, she can be held in Contempt of Court and perhaps jailed.
I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 577-9797 or via email at Eric@RothsteinLawNY.com. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. The above answer is for informational purposes only and not meant as legal advice.
It appears that your aunt is simply delaying the inevitable. She should turn the will over to the heirs.
If this answer was helpful, please mark it as helpful or as a best answer. This answer is for general education purposes only. It neither creates an attorney-client relationship nor provides legal guidance or advice. The answer is based on the limited information provided and the answer might be different had additional information been provided. You should consult an attorney.
Yes-she can be made by the court to file the will.
Unfortunate that you might need an attorney to
force her to do the right thing.
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.
Your aunt, as explained by my wise colleagues here, is legally required to produce the will and can be forced to do so under penalty if she doesn't cooperate. However, if the will is unfair to your aunt, she can exercise her Right of Election. New York law is very specific in its protection of the inheritance rights of a spouse (husband or wife). Under the law, a spouse is entitled to an "elective share" of the assets which is defined as the greater of $50,000.00 or one-third of the estate which includes property such as joint bank accounts and certain assets which are known as "testamentary substitutes." A spousal right of election can be filed by a surviving spouse who has not inherited assets that are at least equal to the elective share of the estate. This must be done within 6 months after the executor of the estate is appointed. In this case since there was a prenuptial agreement, the case should be evaluated as early as possible, for the agreement may be overturned if it is deemed to be unfair. The likelihood of the pre-nup being overturned is unlikely, but this is the only legal way she can attempt to get anything from the estate without the children's consent. My suggestion is that should decide if the amount that she would get from the Marital Election is significant enough to cover a good litigation attorney and leave her with a substantive inheritance and whether this is important enough for her to risk ruining her relationship with her stepchildren before she files for the election.
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