Legal Question in Wills and Trusts in New York
Mother dies before modifying will written before child was born.
A woman in NYS wrote a will after she was first married. In that will, she specified that her spouse was to receive all of her possessions - with the exception of monies in two separate bank accounts (referenced by actual account numbers in the will) that were soley in her name prior to her death. These accounts contained monies received from a wrongful death settlement concerning her father - and her will indicated that her two sisters were to inherit that money. The woman later has a child, but fails to update her will to mention him before she passed away. The child is still a minor.
As I understand NYS law, the child should get a percentage of her possessions - calculated as though there was no will in place. I believe this amount to be half of the total possesions amount minus $50,000.
Would the monies currently in the previously mentioned two accounts count towards that ''total''? Or, since is had specific designee listed to receive the monies, would it be excluded?
3 Answers from Attorneys
Re: Mother dies before modifying will written before child was born.
Only the surviving spouse is protected in New York; entitled to roughly 1/3 of the estate.
Even afterborn children are not entitled to "claim against the Will".
Re: Mother dies before modifying will written before child was born.
All assets owned by the woman are used in the calculation, even if the Will specifies that certain assets go to named recipients. Only jointly registered assets do not enter the calculation. I also suggest considering a possible claim against the attorney who drew the Will, for not considering the possibility that a child would be born.
Re: Mother dies before modifying will written before child was born.
I am sorry for your loss. It is particularly difficult to leave behind a young child.
The law is very clear on this situation. The 'estate' includes all of the property of the deceased. The child gets a portion of the entire estate. This includes any separate bequests in the will. In addition, the husband gets a minimum of the whole estate as well. If the portion of the estate not covered by the specific bequests to the sisters is sufficient to cover these minimums, then the sisters get 100% of their portion. If not, then the shortage is subtracted from what they will receive. (I am assuming there are no ther 'specific bequests'.)
While it is true that wills generally provide for the possibility of a later child, the law provides plenty of protection for the child. There are 2 outcomes likely in a lawsuit against the lawyer who drew up the will: (1) he will have to give back the amount of money he charged to make the will and (2) a complaint will be listed in his file with the Office of Court Administration.
In light of your loss of the deceased, your energies might be better spent dealing with the possible issues related to the 'confusion' in the will situation.
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 or (718) 729-2029
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