Legal Question in Wills and Trusts in New York

Re: Heirs responsibilities on taxes, expenses on house w/ no will

There are two things that you should know. First, if there was no will, then there can be NO executor -- an executor can only be named in a will, and that appointment is not made unless a will is allowed by a court. Since your father died without a will, the law of intestacy applies. (To die "testate" means that there was a will.)

Second, if your father was not married at the time of his death, the law of intestacy requires that all of his assets would be divided equally between the surviving children and among each group of children of any children who did not outlive him. If there were only three children, then you have a 1/3d interest in the house and you are responsible for covering 1/3 of the taxes, expenses, etc., until the property is sold.

The only way your sister has the right to have any kind of authority of your 1/3d interest in the house is if she was appointed "administrator" of your father's estate by the Probate Court. (Voluntary administration only applies if there is less than $15,000 in total assets.) She would then have a duty to you and your sibling to sell the property for the best price she could get -- which frequently means spending some money to fix it up a bit first as a realtor might suggest.

If she has not been appointed as administrator, then you have an equal right to request that appointment from the Probate Court, in which case, you would be responsible for the management and sale of the property. There are specific laws which govern how you get appointed, what you must do once you are appointed, and how you go about selling the house when there is no will.

Now, it might make some business sense to rent it out until the market improves. In that case, you would have the right to receive 1/3 of the net profit. But she does not have the right to rent it out without your full knowledge and consent. If your sister has been appointed administrator and she refuses to sell the house, you could either demand that she buy you out or file a "Petition to Partition" in the Probate Court.

Please feel free to contact me if I can be of further assistance.

Re: Heirs responsibilities on taxes, expenses on house w/ no will

First, I am sorry for your loss.

If your Father died in Massachusetts without a will you can petition the Probate Court in the County where he resided to appoint you administrator of his estate which by statute would be divisible equally among his surviving children assuming no surviving spouse.

If he resided in New York at his death you should consider retaining a Massachusetts attorney to represent you and perhaps any other sibling residing in Massachusetts in monitoring the proper administration of his estate in New York.

It may make good business sense for the heirs to equally contribute to the expenses necessary to maintain the property and/or to rent it pending completion of the administration of the estate and/or sale of the property.

Re: Heirs responsibilities on taxes, expenses on house w/ no will

I am sorry for your loss.

Attorney Golden's advice is directly on target. The only reason you or the other two siblings need to pay the property taxes is if as a practical matter, the estate has no money and you do not want the property to have tax liens on it or other title issues when the property is disbursed to the beneficiaries.

You and your two siblings need to agree as to whom will be the administrator of the estate and the Court needs to appoint them.

If you do not want to keep the home, there are a few options here:

1. Your siblings buy you out; or

2. Either your sister or whomever is appointed administrator gets permission to sell the property and does so;

3. Upon disbursement of the property; you file a Petition to Partition the property.

I suggest you find out if she has been formerly been appointed as Administrator of the Estate.

Then the issue is whether she has authority to rent the property and whether you and your other sibling want to object to her doing that.

Please feel free to contact me if you have more questions.

Re: Heirs responsibilities on taxes, expenses on house w/ no will

You would only be responsible for the taxes if (a) you owned the home jointly with your dad; or (b) you had what is known as a "life estate" in the home, neither of which sound like they apply to your situation. Thus, your sister's request is out of line.

If indeed your father died without a will, then the three of you have equivalent rights of inheritance. Although your sister is claiming to be running the show, she may not be doing what it takes to truly control the situation. You have the same right to control the estate; you can accomplish this by filing what is known as a petition for voluntary administration in the Probate County in the county in which he last lived. In filing the petition you can seek to be appointed administrator of the estate. If you are appointed, you and not your sister would be empowered to make decisions about whether to sell or rent out the house.

Feel free to contact me if you have any questions.