Legal Question in Wills and Trusts in New York

Re: Dad says he had a will, Mom says not

The first part of your question is where to find a will if he drafted one. In New York an individual may file a will with the Surrogate's Court in the County where the decedent lived. It is filed under a SKW (safe keeping will) number. I would check the surrogate's court.

Many people keep their will with an attorney. I would talk to a family attorney.

Finally, either you or a Private Investigator can talk to friends and neighbors to inquire about the status of the will.

In New York, an individual that dies without a will dies intestate. The decedent's estate is divided pursuant to statute. However, before I can talk about percentages, you must first understand what constitutes an estate.

In your communication you speak of a house owned jointly by your father and your mother. Since the house was in joint name that indicated marriage of your parents, your mother automatically inherits the house (with our without a will). The father's property passes to your mother pursuant to law and is outside the estate. This is also true for joint bank accounts, joint title on automobiles, a life insurance policy that specifically names the beneficiary.

Gifts given while the decedent is alive also passes outside the estate. And the gift must actually be transferred. Your father talking about tools does not make a valid gift.

If an individual dies intestate, with a wife and children, the estate is divided pursuant to NY EPTL section 4-1.1. In effect, $50,000 together with 1/2 of the remainder goes to the wife, the remainder is divided equally with the children.

If you want to discuss this matter further, feel free to telephone. My number is 516-295-9061.

Re: Dad says he had a will, Mom says not

Unfortunately, when the lips are sealed, you can never learn what was going through your father's mind. He may have left a Will and you can't find it; he destroyed it; or it was destroyed by accident or design.

A will can be deposited with the Surrogate, but that is unusual. It's good to check.

Check with his lawyers. Lawyers charge fees and a review of his check book may disclose their identities.

Check with close friends or clergy.

If no will is found the law provides for intestate distribution. In your case it's $5,000 and 50% of the balance to mom and the other 50% among the children. Since the house was owned by mom and dad, the house goes to mom,by operation of law and not by intestacy.

The intestate scheme of distribution may enable the family to implement your dad's plan as he expressed it to you but may have failed to include in a Will.