Legal Question in Wills and Trusts in New York

Re: Authorizing a Consent to Probate

This is a difficult situation. Death of a parent is always difficult and there are always conflicts. In your father's case, there are clearly unresolved issues between him and your mother. This may not reflect on his feelings or relationship to you at all.

Your brother is a different matter. He is being unnecessarily controlling. It sounds like he is irritated because he sees himself as protecting your interest as well as your own and does not feel you are showing him proper appreciation.

This is how it is when parents die. all families experience this. I recommend you take your brother and father to lunch (SEPARATELY!!!!) and talk to you about what they think is going on. They may surprise you. If not, its one hour and a $15 lunch check.

Regarding your question: of course you have a right to examine the will. This right continues up until the distribution of property under the will is made and the 'final accounting' of the estate is presented to the court for approval and closing.

The complicated part of the question is why your brother thinks you will lose some rights if you don't sign this consent waiver. The waiver is pretty meaningless. At best, it saves the estate $75 for a professional process server.

Signing the waiver may speed things along by making your brother feel more comfortable. If he thinks he cannot probate the will without the consent waiver, then his legal advice is flawed.

5 years with no will probated is too long. You have the right, as an interested person, to petition the court directly to probate the will. You can get a court order to require the other 2 persons to produce the will. You can be named by the court as 'executor'. After 5 years, this is a real option. (This is why I suggest the 'lunch'. You need them to answer the question "why nothing in 5 years?")

Lastly, if the house was owned jointly by your mother and father at the time of death, he is now by law the legal owner. However, the property distribution from the divorce may have something to say about that. The restrictions and obligations on your father after your mother's passing may continue. However, your father may contest that in court.

Lastly; I know it has been five years, but my condolences on your loss.

You are welcome to a consultation for no fee at my offices at 42 west 44th street, NY,NY. Please call for an appointment first (646) 591-5786.

Re: Authorizing a Consent to Probate

There are several issues raised by your question. In the first place, jointly owned property ordinarily automatically passes to the survivor upon death and is only part of the estate for the purpose of computing estate tax. However, your parent's divorce decree should have determined what occurs to the house upon one parties death.

Finally, what you are being asked to sign is most likely a waiver of citation of notice of probate. If so, your refusal to sign would only require that the Executor, through his attorney, serve you with notice that the will is being offered for probate.

My comments are based on treating your question as an hypothetical. Accordingly, my comments could be substantially and materially different were I advised of all of the relevant facts and circumstances. My comments are by necessity general in nature, and should not be relied upon in taking or forgoing action in your circumstances without retaining an attorney. In order to fully explore your legal matter, you should meet with me or another attorney and bring to any such meeting all relevant documents and correspondence, and any other relevant facts.

I am not hired to be your attorney, and no attorney-client relationship exists between us, unless and until you enter into a written retainer agreement with me, tender the agreed amount for a retainer and it is accepted by me. I reserve the right to decline representation should circumstances change.

As you are aware, in New York there are various deadlines for filing a complaint, filing an answer to a complaint, or taking other action in order to preserve your legal rights, and avoid a complete loss of those rights. You should retain counsel immediately in order to be fully advised of your rights, and to be fully informed of the applicable time period within which those rights must be asserted. If you were to delay in doing so, it might result in your potential cause of action being forever barred.

Re: Authorizing a Consent to Probate

Some facts appear to be missing for a full answer. If your parents were divorced, who got the house in the divorce? How did the Deed read? While joint assets pass between the joint owners, a single owner's assets pass by a Will or by the intestacy statutes. Intestacy usually gives a large share to a surviving spouse, but the divorce would eliminate that. If there were no Will, and only your mother's name on the Deed, by intestacy the house would go equally to you and your brother. Consent to Probate allows a person the appointed to represent the estate. It can be used for probating a Will or an administration (no Will-intestacy). Allowing a Will to be probate does not mean you waived your rights to contest it. I really need more facts about the divorce, the house ownership (Deed) and how your father believes he has a right to the house. Was there a Property Settlement Agreement in the divorce? If so, what did it say about a house?