Legal Question in Wills and Trusts in New York

Re: to probate or not to probate

Who were the Executors or Administrators of the estate of the second of you parents to die? These people can convey the parcel to the rightful owners, presumably one-third to each of you.

If you sister was one of the fiduciaries you can ask the Surrogate to let the two survivors act.

Now, once you make the transfer of ownership of the house, it will be owned, one-third by each of you, your brother and your sister's estate.

You will need the consent of your brother in law to sell the house.

Re: to probate or not to probate

Since your sister was alive when your parents died, she is entitled to her share of their estates. This would include her share of the house. Since she predeceased the distribution, the new Deed, to be recorded now, should be in the names of the heirs, but with your sister's interest as being in the name of her estate (Estate of XXX). To have his name added to the Deed, in place of your sister's estate, he must probate her Will. If no Will has been probated, her share of your parents' estates would pass to her by intestacy, which could include her children if there were any. If her Will names her surviving husband as sole heir to her estate, the probate of her Will should allow his name to be substituted for her estate. If her Will specifies anything else, her Will controls who can be named in the Deed. Besides being a SOB, her husband may be trying to hide the fact that their children may have been named to take part of her estate and you must follow the proper procedures. You cannot transfer your sister's share differently from what her Will or the intestate laws provide. If he refuses to probate the Will, just file the Deed naming her estate for her share and let the chips fall where they may. I would also suggest considering applying to the Surrogate's Court where your parents Will(s) were probated, both for instructions and directions on how to record the Deed. Raise the issue of the refusal to probate your sister's Will, demanding that it be produced. The Court can compel the probate or allow the intestacy laws to control. This suggestion covers the possibility that your sister's children may have been named in her Will, and protects you if the husband is acting improperly, as you will have a Court direction as to how to reflect your sister's interest in the property. As an aside, if you consider my suggestion, you can ask that her husband be responsible for your legal fees and costs for refusing to comply with the legal requirements.