Legal Question in Wills and Trusts in New York
Is an Executor Necessay?
My mother is deceased. My father is a NY res.but lives with us in FL as he is terminally ill. He presently has a will in NY with ''Share & Share Alike'' for all three sons. One son has lived there for many years and was supposed to help keep up the house,which he has not, therefore living rent free. Therefore, we are worried, as that brother wants the house, of which he cannot afford due to no regular income along with having no assests. We would love for him to have the house but even with his 1/3 would not be able to get a mortgage nor are we willing to hold a note. My fathers assets, including the house, is approx. 500,000. Would it be best for my father to get a new will in Fl?
Is an executor necessary and can all three act as one? Can we get my brother out of the house, after we give him time to try to get a mortage, how long do we give him and if he refuses to leave after that time and what rights do we have? In what incidences does probate occur and where would it occur if he keeps the NY will vs. a Fl will? Also, what is the difference between inheritence tax and death tax and would both apply in NY and in Fl? HELP!
2 Answers from Attorneys
Re: Is an Executor Necessay?
If your father's property is in New York, the Will should be probated in New York. There is no need to prepare another Will. Furthermore, if your father is terminally ill, and one of his children were to influence him to prepare another Will, the validity of that Will is clearly subject to attack by those persons who are adversely affected by the terms of the new Will versus the terms of the old Will.
An executor should have been named in the Will. The executor has the responsibility of carrying out the intentions of your father. The executor is legally liable for his/her actions.
When the Will is declared valid at probate, the assests may then be divided in accordance with the terms of the Will. Depending on how the Will is written, the executor may be permitted, or required, to sell assets in order to complete the distribution of assets.
On New York, there is no estate tax for estates of less than one-million dollars.
If you need an attorney, please keep me in mind (212) 971-1384.
Re: Is an Executor Necessay?
My condolences for your father's health.
An executor can be appointed by the court after your father passes. That might be best. Discord in his family in his last days is not constructive.
Your brother gets no special rights by residing in the house. If the house is not sold, then he cannot be evicted. Whether or not it will be sold may be a contentious problem for the future. The executor will be influential in that decision.
The will dividing the estate equally among the 3 surviving children will be sufficient (its much like my parent's will).
A new will may be confusing and open the floodgates to destructive fighting among the children. Better to not create the problem.
A will can be sufficient if drafted anywhere. The NY will is just as good as an FL will, and vice versa.
You are welcome to a consultation for no fee.
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