Legal Question in Wills and Trusts in New York
Failure to Probate Will
My father is dying of cancer and my mother dies 12 year ago. In reviewing my fathers papers I learned my mother had a will leaving the house 1/3 to my father and the remainder to her children (the house was my mothers). My sister, named as executor, who lived with my parents intentionally never probated the will. I understand my father's will leaves the house to my sister as long as she lives there. My sister has contacted a lawyer who has both wills, and she informed her siblings the house in now in her name. I assume her lawyer had a duty to act on my mother's will. After 12 years can I probate the will and have my mother's wishes honored.
2 Answers from Attorneys
Re: Failure to Probate Will
Yes, you can probate a will no matter how long ago the person died. To start, you'll need the original will from the lawyer, which he may turn over to you voluntarily, or you may need to obtain a Court order compelling production of the Will. Feel free to contact my office for brief complimentary consultation on your situation.
Re: Failure to Probate Will
Before you do anything, are you SURE your Mother didn't deed the house to her and your Father while she was living? You should get a copy of that deed. If she did, when she passed, the house went to your Father no matter what her will stated.
Go to the county clerk where the property is and ask to see the past deed (most are on computer terminals there).
Even if she did, it sounds like your Sister could have exerted undue influence over your Father to deed the house to her. This deed can be challenged.
So, if deed was in your Mom's name alone, you can probate her will.
If deed was titled to both parents, you can oppose this deed transfer to your sister.
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