Legal Question in Wills and Trusts in New York
Executor did not probate a will to which I'm a beneficiary
My aunt passed away 4 years ago. At the time, my uncle said that my sister and myself were beneficiaries to the estate. He also said that my Aunt & he agreed on how her estate would be distributed. My understanding is that she didn't have a will.
I have recently discovered that my Aunt did have a will, and the terms were more generous to me than what my uncle had originally stated. My guess is that my uncle never probated this will. What are my remedies?
2 Answers from Attorneys
Re: Executor did not probate a will to which I'm a beneficiary
If you can obtain possesion of the Will you can cause it to be probated. If you know who has the Will you can get an order from the Surrogate directing that person to deliver it to a person who can probate it.
Re: Executor did not probate a will to which I'm a beneficiary
The need to probate the Will of your aunt depends upon how the assets they owned were titled. Usually, as between a husband and wife, they own the assets jointly with right of survivorship. Since this type of ownership automatically passes the ownership to the survivor, even if a Will says something different, the ownership registration controls. This could explain why no will has been submitted for probate. A probate only is necessary if the decedent owned assets individually. Let's presume your aunt owned assets individually, and the Will left some to you, even if your uncle survived (highly unlikely, but possible). By not filing the Will, your uncle fraudulently denied you a share of the estate, by claiming your aunt died intestate (without a Will). However, calling upon my years of experience, it would be more probable that her Will named you as a contingent beneficiary (one who only inherits upon the happening of a contingency). The usual contingency in these cases is that the decedent is the survivor of a husband and wife. If I am correct, you would only inherit under your aunt's Will if she survived your uncle. However, since he survivied, it is more likely that he inherited everything, as the contingency (your aunt's being the survivor of them) had not taken place. If my presumption is incorrect, you need to get the original Will and now offer it for probate, with a claim against your uncle. If the original is not available, you do not have a supportable claim, without more proof than he said, she said testimony. I think more facts need to be uncovered to provide a better answer, and finding the original Will is the first starting place.
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