Q: How do I find out if my father-in-law left a will? He left three houses and other assets. His widow, who is not the mother of his six children, has told them that "their father did not leave anything for them."
reason to believe that he didn’t leave a will – and you’ve written that if
someone dies without a will in New York State,
Three of the children want to find out if there was a will, just on principle; the others say just forget about it. Why is she a different person now than when their father was alive? How should we proceed? -- HD via email
A: The siblings who want to pursue this are right that there's more than money at stake here. In families, money means love, power, and sometimes, feelings of betrayal, especially when it involves legacies from parents.
A will is a public document. Anybody can to go Surrogate's Court in the county where your late father-in-law lived and read a copy of his will after it is probated. (Probate is the legal procedure in which the court accepts a will as valid.)
But if he had left a will that was filed for probate, his children would have been notified by the court. The fact that that hasn't happened suggests that either there is no will or that it hasn't been presented for probate.
It's true that if he left no will, the state's intestacy law would divide his property between his children and his surviving spouse. But that law only applies to property that is left through a will. The intestacy law doesn't cover assets that pass outside a will, such as retirement accounts, life insurance, and jointly-owned assets. Any asset with a named beneficiary goes directly to that person. Any jointly-owned asset automatically goes to the surviving owner.
The bottom line: even if your father-in-law had no will, he could have left all his assets to his wife through beneficiary designations, joint ownership, and 'in trust for' bank accounts, says John Barnosky, a Uniondale, New York estate lawyer.
advice: Go to the Count Clerk's office in the
counties where the three houses owned by your late father-in-law are located,
and look up the last owner of record.
If he put the houses in a trust for his wife's benefit, for example, the trust would be listed as owner of record. But if the houses were in his name alone, the only way they can pass to a new owner is via a will or under the state intestacy law.
If there are any assets that were in his name alone, his children should file in court for an intestacy proceeding, in which the court will distribute the assets as directed by the law. As a first step, their lawyer should write a letter to his widow. It should say: "Since we haven't heard about a will, we assume there is none. We're therefore bringing an intestacy proceeding. Please send us a list of the decedent's assets."
It may be that his formerly friendly widow is being evasive because husband transferred everything to her while he was alive, and she doesn’t know how to explain that to his children.
If he did
transfer his assets to her during his lifetime, his children can challenge the
legitimacy of those transfers in Surrogate's Court.