Legal Question in Wills and Trusts in New York
Dad passed away. step mom is executor. dad's will stated his funeral plans and did not allocate personal items to anyone. he did not have anything of real value and he rented so no property. step mom has brought about a wrongful death suit for medical malpractice. she an award be given she wants to pay off all expenses, set herself up in a nicer place and give the rest to veterans in need. don't i as a surviving heir over 18 have a claim to any of the leftover money? i know in my heart dad would take care of myself and siblings before donating it all away. today she met with a paper to sign, it says waiver to process consent to probate.
2 Answers from Attorneys
There are two things going on here. First, your dad has a cause of action for malpractice that would pass under the terms of the will (it's called a survival action). Second, you personally have a cause of action for your dad's wrongful death (called "wrongful death"). If the will leaves everything to the spouse, then you're out on the dad's survival cause of action, but you still have the wrongful death case that you own personally.
You should get a copy of the will and read it. Make sure you're left out. Also, you should get your own lawyer for the wrongful death case. NOW.
David left out that the waiver is needed to be signed to admit the Will to probate. Try to get a copy of the Will before you sign the waiver, just in case you want to contest the Will. Your step-mother can do anything she wants with any recovery she gets for herself in a wrongful death suit, but she cannot do anything about your claim. You imply there might be other children involved, and even if they are minors they also can make a wrongful death claim of their father.
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