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Need definition of will verbiage - NY

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needlaws

Junior Member
What is the name of your state (only U.S. law)? NY

How would the following statement in a will be interpreted by a NY court of law?

"My executor shall arrange for the sale of my home located at _____ NY within one year from the time of my death. for as long as she desires."

The part I'm concerned about is "for as long as she desires".

The will has not been probated.

Thanks in advance for any information.

Please see below for additional information:

I am 1/4 owner of a property in NY as per my deceased mother's will. Two other siblings own 1/2 and 1/4 (a third sibling gave her 1/4 to the sibling now owning the 1/2 portion). My two siblings agreed to buy me out over a year ago and are refusing to do so now. The will states the house /property should be sold within one year from my mother's death. She will be dead two years this week. I would like to have a lawyer file a "partition to sell" on my behalf. My question is: will or can the court deny the partition thereby forcing me to remain a part owner? I do not wish to bear any legal or financial liability for the home/property. My two siblings want to wait for the housing market to rebound. The 1/4 owner now lives in another state. The 1/2 owner has a health issue. Any advice would be appreciated.
 
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anteater

Senior Member
"My executor shall arrange for the sale of my home located at _____ NY within one year from the time of my death. for as long as she desires."
Is there a typo or a missing word there? Like an "or"? It still would not make the clause make sense. But it would be a moderate improvement.

I am 1/4 owner of a property in NY as per my deceased mother's will.
Has the distribution from the estate been made already? In other words, has the house already been re-titled into the 3 siblings' names?
 

Kiawah

Senior Member
To a casual observer, I might interpret that to mean the house needs to be put up for sale within a year, but she doesn't need to accept a low ball contract and can keep it for sale for as long as she wants (to optimize the amount of $$ = Sale price, minus carrying costs for the time it's up for sale).

That's reading a lot into a possible intent....
 
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needlaws

Junior Member
Is there a typo or a missing word there? Like an "or"? It still would not make the clause make sense. But it would be a moderate improvement.


Has the distribution from the estate been made already? In other words, has the house already been re-titled into the 3 siblings' names?
Distribution has been made. It has been re-titled. What does that mean?
 

anteater

Senior Member
Distribution has been made. It has been re-titled. What does that mean?
Well, if it were still part of the estate, then the Surrogate's Court would still be available for you to petition to enforce the will's provisions. That might be easier and less expensive than a partition suit.

You might retain an attorney to make the threat of a partition suit. Perhaps, just the threat will make your siblings more amenable to a buyout.
 

needlaws

Junior Member
Well, if it were still part of the estate, then the Surrogate's Court would still be available for you to petition to enforce the will's provisions. That might be easier and less expensive than a partition suit.

You might retain an attorney to make the threat of a partition suit. Perhaps, just the threat will make your siblings more amenable to a buyout.
How do I know whether or not it is still part of the estate? I called the surrogate's office and the clerk told me the will had not been probated but she was not allowed to give me that information. She told me I had to have my lawyer check with the surrogate's office to verify the will has not been probated.

I asked my siblings to refinance now or I would have to get an attorney to to file suit to partition the sale of the property/house and they refuse to do so. I am caught between a rock and a hard place since the 1/2 owner also now has a health issue and the 1/4 owner lives out of state so I am thinking the court will not judge in my favor.
 

anteater

Senior Member
I called the surrogate's office and the clerk told me the will had not been probated but she was not allowed to give me that information. She told me I had to have my lawyer check with the surrogate's office to verify the will has not been probated.
There is a contradiction there if the clerk said that the will had not been probated but was not allowed to give you that info. The part about the lawyer checking is garbage. If you are nearby, visit the court and ask to see the file.

Otherwise back to square one with the questions.
Distribution has been made. It has been re-titled.
How did that happen if probate was not opened?

(And I apologize for missing the statement, "The will has not been probated" in your first post. But the question still stands: how did the house end up titled in the kids' names if probate has not occurred.)

If probate has not been opened, petition the court to open probate and for appointment as the executor.


I am caught between a rock and a hard place since the 1/2 owner also now has a health issue and the 1/4 owner lives out of state so I am thinking the court will not judge in my favor.
The court will not give a hoot about who has health issues and who lives out of state.
 
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needlaws

Junior Member
There is a contradiction there if the clerk said that the will had not been probated but was not allowed to give you that info. The part about the lawyer checking is garbage. If you are nearby, visit the court and ask to see the file.

Otherwise back to square one with the questions.

How did that happen if probate was not opened?

(And I apologize for missing the statement, "The will has not been probated" in your first post. But the question still stands: how did the house end up titled in the kids' names if probate has not occurred.)

If probate has not been opened, petition the court to open probate and for appointment as the executor.



The court will not give a hoot about who has health issues and who lives out of state.
I don't know why the clerk gave me the info that the will has not been probated and then told me she was not allowed to do so. The court is not nearby for me to go check the papers.

My mother put the house in our four names before she died. Since her death one sibling re-titled her 1/4 to the other sibling thereby making her 1/2 owner at this time. As the title stands now one sibling owns 1/2 and two own 1/4 each.

I am hoping that if I must partition to sell the court will grant that in spite of the unclear wording of the will (i.e. "My executor shall arrange for the sale of my home located at (N.Y. address) within one (1) year from the time of my death. for as long as she desires." The "for long as she desires" is open to interpretation as far as I can tell.
Thanks for your comments.
 

anteater

Senior Member
My mother put the house in our four names before she died. Since her death one sibling re-titled her 1/4 to the other sibling thereby making her 1/2 owner at this time. As the title stands now one sibling owns 1/2 and two own 1/4 each.
Aha! Excuse the frustration, but that one little fact makes a world of difference.

If the house was transferred to the kids' ownership before your mother passed away, then her will as it relates to the house is irrelevant. A will's provision relating to an asset that the deceased did not own at the time of death is simply void.

You are back to filing a partition suit. And the earlier advice stands:
You might retain an attorney to make the threat of a partition suit. Perhaps, just the threat will make your siblings more amenable to a buyout.
Your requests can be brushed off as idle chatter. Perhaps, a demonstration that you are willing to proceed with a partition suit will get them off the pot.


ADDITION: As a "by the way..." From an income tax point of view, the gift of the house to y'all was probably not the best move (as it also was not the best move if your mother's real intentions were as stated in the will). The cost basis of the house for you and your co-owner siblings is your mother's cost basis. If y'all had inherited the house rather than it being gifted to you, the cost basis would be the fair market value on the date that your mother passed away. This could make a substantial difference in the capital gains if your siblings buy out your share or the house is ordered by the court to be sold.
 
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