Legal Question in Wills and Trusts in New York

My husband died intestate several years ago. He had two children, one piece of real estate, and a life insurance policy when he died. I have delayed finalizing his Estate Proceedings for various reasons that I won't go into, but now one of his children has filed an Injunction against me to compel me to finalize the Estate. The attorney I used immediately after his death advised me to waive my share in his life insurance policy to allow his two children to inherit the entire policy in exchange for them waiving their 25% interest each in his real estate under New York's intestate laws. However, I never filed the Elective Share Waiver as I believe the document was called and do not have a copy of it. When I recently contacted the firm that represented me several years ago they said they could not locate the document. I sold the real estate shortly after his death and did not give the 50% (25% each) to the two children under the understanding that the entire interest was mine since I had waived my share in his life insurance policy. However, now that the document cannot be located (and the children are claiming no recollection of the agreement) I am scared I will have to come up with the funds to pay the children back; a sum of some several hundred thousands of dollars that I cannot afford since I used the sale proceeds

My questions are: Is there another way to prove the agreement that I made with the children or am I completely screwed? Isn't there a way that the firm that represented me should be liable in some way for misplacing the document? Did I even make a valid and legal agreement by exchanging my interest as a beneficiary in the life insurance policy for their interest as heirs in the real estate?


Asked on 1/05/10, 1:38 pm

1 Answer from Attorneys
Michael Markowitz Michael A. Markowitz, PC

Q. My questions are: Is there another way to prove the agreement that I made with the children or am I completely screwed?

A. You may subpoena the document - and the canceled checks - from the life insurance company.

Q. Isn't there a way that the firm that represented me should be liable in some way for misplacing the document?

A. Maybe. It would be legal malpractice. However, it is too early in your litigation to make this determination.

Q Did I even make a valid and legal agreement by exchanging my interest as a beneficiary in the life insurance policy for their interest as heirs in the real estate?

A. I think so. You had no duty to deliver the insurance payments. So, as a result of the agreement, the children quickly received money while you had to wait for the sale of the real estate.

Mike.

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Answered on 1/11/10, 5:11 am


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