Legal Question in Wills and Trusts in New York

Re: How long is too long? Father hasn't filed wife's will after more than a yea

By statute, automobiles owned by a decedent become the property of the surviving spouse and can be transferred without the necessity of probate. All that is required is a death certificate and proof of the marriage. This is done by the DMV.

In terms of the Will, your wife may go to Surrogate's Court and begin a proceeding to compel production of the Will. Alternatively, she can move to have him removed as Executor.

As a life tenant, your father in law would be responsible for paying current property taxes.

Finally, by statute, the father is entitled to $50,000 plus one half of the estate if there was only one child.

If this is less than what was left to him under the will, he may file a notice of election and receive that amount from the estate.

This does not include any jointly owned property which passes automatically upon death to the survivor. (Like the automobiles) Those items are not part of the estate, except for purposes of estate taxes.

If you wish, you may call me at 914-478-2981.

I do not charge for an initial telephone consultation. The best time is late afternoon or early evening.

Re: How long is too long? Father hasn't filed wife's will after more than a yea

A will is supposed to be filed for probate as swiftly as possible. There is generally no reason for delay.

Your wife, as an interested party, can ask the Surrogate to order the person holding the Will to produce it for probate.

Re: How long is too long? Father hasn't filed wife's will after more than a yea

I am sorry for your wife's loss. I do not know your father in law, but depression at the death of a long-time spouse can be debilitating. Its hard to deal with death.

That said, the will can be submitted to probate at any time after the passing of the decedent. If the will has not been submitted within 90 days, I would look into having a person other than the father in law perform this. Perhaps he should be removed as executor as well.

The father is responsible for the general upkeep of the house. The taxes are similar. While they can be allocated in the will to either the life estate or the remainderman (your wife). THE GENERAL RULE IS THAT THE HOLDER OF THE LIFE ESTATE IS RESPONSIBLE FOR THE TAXES ON THE PROPERTY as well.

The exception is where the taxes became due during the lifetime of the decedent. Then they are 'chargeable' to the estate (your wife). But all taxes that became due after the death of your mother in law are the responsibility of your father in law.

The 2 cars are unfortunate. People make assumptions and make mistakes. legally, the cars (as a part of the estate) are not owned by your father in law and can be re-claimed. This is a 'conversion'.

You are welcome to a consultation for no fee at my offices at 42 west 44th street, NY,NY. Please call for an appointment first (646) 591-5786.