Legal Question in Wills and Trusts in New York
Hello, I am the executor of a will. My mom passed away in Aug,2013... I am about to go to probate and the family lawyer is now recommending we avoid probate altogther and file for joint heirship between the existing family members on her home that will be going to forclosure soon if we do not sell it within 6 months...The mortgage is $277,000 on the house in New York City and we may be able to get about $350,000-320,000 on the home. She has a very small estate. She died poor with $250 in her bank account and has about $10,000 in outstanding medical bills... just for some current financial background on the sitiuation. And she only had about $5000 in sellable assests to cover some of the expenses, her LAWYER is recommending we do not go to probate stating we will save the $600 filing fee and forego any tieup in the courts with the probation process which will take weeks or months he says..., He is suggesting we state that she died and left no will so we can then file joint heir ship on the home and try to sell it faster.... My question is, "What are the penalities under law if we destroy the will and act like she never made one?" It sounds completely unethical to me and I need to know the penalites involved because he has convinced my family members that is ok and this happens regularly in order to take control of a home quicker and speedthe process up faster, stating a will not filed under probate is no morethan a piece of paper... In the will, the home was to be evenly distributed between the six sons so everything is to be divided fairly anyway, he says... Again, please, what are the potential problems we face if we follow his advise? I want to protect my family and ensure everything is done legally... Thank you for your help.
3 Answers from Attorneys
The attorney is telling you to destroy a legal document and to lie to the court, get another lawyer.
Someone must be appointed fiduciary by the court in order to sell the home. His idea is not only improper, but saves nothing.
If all of the heirs are on board and sign the deed, the house may be sold without Probate. Do NOT destroy the will. There is no legal requirement that I know of which requires that a will be offered for probate. As long as no one objects and a title company agrees to insure marketable title, you will be OK. I have done this several times over the years where the estate concerned only siblings as heirs.
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