Legal Question in Real Estate Law in New York

Re: Green County Dilemna

LawGuru has sent your question to both its NY and CA real-estate attorneys because you reside in California; however, from reading the question, it is clear that you need advice from an attorney licensed in New York state.

That said, as a California attorney I can tell you what the law would be if the property and the probate were here:

You would be what is called a 'pretermitted' heir. That's someone who would ordinarily be expected to inherit, such as a child, but whose name is omitted from the will. Used to be that such pertermitted heirs could get included in the property division rather easily, as there was a presumption that their omission was an accidental oversight.

That's why testators used to disinherit less-favored offspring by saying, "To my daughter X I leave $2, and the balance of my estate shall be divided equally between my daughter Y and my son Z."

In recent years, however, the courts and the legislature have tightened up on pretermitted heirs. Now, they must convince the court that their omission was accidental, and that's tough to establish.

New York may be more lenient on pretermitted heirs. You should have a NY attorney with probate administration experience review the will and give you advice on your chances of prevailing in a will contest or other action to assert your ownership in the property, if any.

Finally, I would be cautious about filing any kind of notice (such as a "lis pendens" or its NY equivalnet) claiming an interest in the property until your NY attorney has reviewed the merits of your claim; otherwise you might risk a retaliatory action for "slander of title" or damages for a lost sale.

Re: Green County Dilemna

I am a NY Attorney and consider Atty Whipple's response to your question as very good and definitely applicable in NY.

Good luck,

Phroska L. McAlister,ESQ