Legal Question in Wills and Trusts in New York

My great aunt died in 2008, and her attorney lost her will. Her last remaining sibling (my grandmother) died after her but before the error was discovered. While her executor knew of the issue, we just found out. According to NY state law, would my dad and aunt (my grandmother's heirs) be able to get my great-aunt's estate out of probate? The estate is currently being held "in trust" by NYS.


Asked on 1/17/12, 11:53 am

4 Answers from Attorneys

David Slater David P. Slater, Esq.

They should. I can refer you to competent NYC counsel.

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Answered on 1/17/12, 12:02 pm
Michael Markowitz Michael A. Markowitz, PC

I am a little confused by your question. In particular,

1. What error was discovered? Is it the lost will?

2. Who was your great aunt's executor? If she had an executor, was the will probated? You cannot be an executor unless the will is probated.

3. What is the issue that the executor knew of? Was it the lost will?

4. What do you mean by "get the estate out of probate?" Was a probate petition filed? If yes, who filed the petition?

5. Please explain what you mean when you write that NYS is holding the estate in trust.

Answer these questions and I may be able to help.

Mike.

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Answered on 1/17/12, 12:11 pm
Walter LeVine Walter D. LeVine, Esq.

I am also confused, as Mike states. Was there some probate or an administration? Is there an Executor or an Administrator? It appears, if there is an administration (no Will - an intestacy), that unless there was a spouse and/or parents (you do not say anything except about a sibling) and the only heir was her sister (your grandmother) that the estate would be payable 1/2 to your Dad (or his estate if he is deceased) and 1/2 to your aunt or her heirs. I do not understand, since this appears to be a simple situation, why it cannot be resolved. More facts are needed to fully respond to your questions.

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Answered on 1/17/12, 1:48 pm
Arnold Nager Arnold H. Nager, Esquire

If the attorney had a copy of the lost will, they might be able to probate that. Much more information is required. Who were the heirs under the "lost" will?

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Answered on 1/18/12, 2:12 am


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