Legal Question in Wills and Trusts in New York
My grandmothers husband recently passed away, my grandmother and and him lived together in a house that he bought with his previous wife who had passed away. In 2004 he was diagnosed with Alzheimer's and his son took him to the lawyer had him sign over the property to his son without anyone knowing what was going on giving his father living use of the house. My grandmother had then got a power of attorney in September of that year. In his passing there was a mortgage out on the house which is in my grandmothers name and also in her husbands name, in his will he left all his property and belongs solely to my grandmother. Now that he has passed the son has just given my grandmother a 10 day eviction notice. She also just paid the taxes on the house. What are her legal rights? Can she take anything in the house that she wants or does she have to prove that it belongs to her? Does she have to leave within the next ten days? Does the eviction have to go through the court or is the notice they left hanging on her door legal?
1 Answer from Attorneys
Q. What are her legal rights?
A. A very broad question. Based on the limited facts in your question, if the husband did not have capacity to transfer the house in 2004 because of dementia, you may be able to void the deed. Also, if the intent of the husband was to give the house to the grandmother - as indicated in the Will and the mortgage - you may be able to argue for a constructive trust on the house. With this argument you may be able to temporarily stop the eviction.
Q. Can she take anything in the house that she wants or does she have to prove that it belongs to her?
A. Certainly she may take her own possessions. Concerning his possessions, you would have to probate the Will. Once Letters are issued by the Surrogate's Court, the decedent's property would be transferred to the grandmother.
Q. Does she have to leave within the next ten days?
A. No.
Q. Does the eviction have to go through the court or is the notice they left hanging on her door legal?
A. An individual is evicted when the Sheriff or Marshal executes on a Judgment of Possession and Warrant of Eviction issued by the Court.
Mike.
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