Will or NO Will

[dleung65]

What is the name of your state (only U.S. law)? New York

My mother just passed. The last will we could find was from the 80's and basically states that her spouse, my father, would get his elective share ,1/3rd as I understand it. It also called for creation of a trust with the income for his benefit. Children get the rest of her assets.

My father is very old school, doesn't like doctors, lawyers, gov't agencies etc. because he believes they just complicate things and add cost and time. He told me to not reveal the presence of a will, since there's really nothing specific in it anyway.

If intestate in NY, I believe he gets half and the rest to children.

The children(myself and sister) have no objections to anything, as we know he:
- doesn't care about the assets
- is financially sound
- will pass his assets to us anyway

My father just doesn't want to do more than necessary.

The Question is Is an estate proceeding without a will easier than with a will?
Assets are:
House solely in mothers name
brokerage and savings accounts, a few in single name.

I KNOW that I shouldn't have a choice. I KNOW that none of you would want to support me in doing anything not proper. So you don't have to advise me of that.

I'm just wondering if I can go the intestate route to satisfy my father. Again, there would be no objections/challenges by any family member.

Thank you!

 

[Zigner]

Well, since you've made it clear that you only want cheerleaders...best of luck to ya!

 

[justalayman]

Um, I think intentionally hiding a will might be a legal problem.



This is the distribution of an intestate estate in New York


the spouse inherits the first $50,000 plus half of the balance. The children* inherit everything else.


Of course not only does dad have no obligation to leave his kids anything (old guys can get pissed off for no reason and write kids out of their will for the silliest of reasons) , there are myriad ways he could lose every penny he has and with it, whatever he gained from your mother’s estate. That would mean you get nothing from your mothers estate.

The old adage: a bird in the hand is worth two in the bush, right?

 

[PayrollHRGuy]

DELETE MY FIRST REPLY....

You have a problem there are at least two lawyers that know there is a will.

 

[dleung65]

Um, I think intentionally hiding a will might be a legal problem.



This is the distribution of an intestate estate in New York


the spouse inherits the first $50,000 plus half of the balance. The children* inherit everything else.


Of course not only does dad have no obligation to leave his kids anything (old guys can get pissed off for no reason and write kids out of their will for the silliest of reasons) , there are myriad ways he could lose every penny he has and with it, whatever he gained from your mother’s estate. That would mean you get nothing from your mothers estate.

The old adage: a bird in the hand is worth two in the bush, right?

Wouldn't the children get approximately half, at least, from the mothers estate?

 

[dleung65]

DELETE MY FIRST REPLY....

You have a problem there are at least two lawyers that know there is a will.

That's true, but what if neither are involved in any way?

 

[Zigner]

That's true, but what if neither are involved in any way?

This forum does NOT promote, advise, or condone breaking the law.

 

[PayrollHRGuy]

That's true, but what if neither are involved in any way?

Lawyers are often around courthouses. Probate takes place in courthouses. There is a greater than zero percent chance that a lawyer (who obviously deals with estates) might hear your or your mother's name and say, "hey I talked to him about that will" at which point someone would say, "what will".

 

[HRZ]

OP...there is supposed to be a high level of respect given to the last wishes of the now departed ...and apparently Mom made a very clear expression of those wishes and as described tHose wishes are consistent with the requirement to address ones spouse.

Now let's be blunt ...you, dad, and anyone else seeking to dishonor Moms lawful final wishes deserves to rest in bottom of rotten fish barrel forever ...

 

[justalayman]

basically states that her spouse, my father, would get his elective share ,1/3rd as I understand it. It also called for creation of a trust with the income for his benefit. Children get the rest of her assets.

When a will is presented to probate, basically is basically meaningless. Exactly is the correct adverb.

 

[dleung65]

OP...there is supposed to be a high level of respect given to the last wishes of the now departed ...and apparently Mom made a very clear expression of those wishes and as described tHose wishes are consistent with the requirement to address ones spouse.

Now let's be blunt ...you, dad, and anyone else seeking to dishonor Moms lawful final wishes deserves to rest in bottom of rotten fish barrel forever ...

With all due respect to you and anyone else who deem to think that I am out to gain something by skirting the law, that is not the case at all.
The will was made over 30 years ago. It is now a world of difference financially for my deceased mother, who we were all close with, and was planning on revising her will. It was an unexpected death with no warning, so she never had a chance. As I understand it, the only difference is whether my father gets half or a third; he's not being cheated of anything. As I mentioned, he doesn't care and neither do my sister or I. If anything, we're all guilty of being selfLESS. We're all simple people and don't want for anything. All I'm doing now is trying to satisfy my fathers naive but simple request. No one is looking for an upper hand on the others. If it was up to me, I'd have submitted the will already, outdated as it is. If there is anyone that knows my mothers wishes, it is I. I'm only asking so that I could tell my father that I looked into it and (hopefully) that it's not any simpler being intestate.

Thanks.

 

[xylene]

Your dad is being dense and a criminal, not 'old school'

 

[justalayman]

The will was made over 30 years ago. It is now a world of difference financially for my deceased mother, who we were all close with, and was planning on revising

. Yet she didn’t for some reason. . It was your mothers and her choice was to leave the will as it was written whether it was yesterday or 100 years ago. Not changing the will, especially given you make a point she has contemplated addressing the matter, shows she was content with it as is.


I see your provlem:

[QUOTED]outdated as it is[/QUOTE]. Wills do not expire unless they have an expiration date included. As such, your mothers will cannot be and as such is not outdated.



Btw; you can submit the will. Here’s your chance to live up to this statement:

If it was up to me, I'd have submitted the will already

It is up to you to comply with the law. That means either submit or make the court aware there is a will.

 

[latigo]

While you are supposedly wrestling with your conscience you might want to consider this:

New York Penal Code Article 210 Perjury and other related offenses.

"§ 210.40 Making an apparently sworn false statement in the first degree. A person is guilty of making an apparently sworn false statement in the first degree when he commits the crime of making an apparently sworn false statement in the second degree, and when (a) the written instrument involved is one for which an oath is required by law, and (b) the false statement contained therein is made with intent to mislead a public servant in the performance of his official functions, and (c) such false statement is material to the action, proceeding or matter involved. Making an apparently sworn false statement in the first degree is a class E felony. "

Because somewhere in the process of probating the estate as intestate someone will be required to falsely declare that the deceased died intestate subjecting the applicant to a perjury charge of either a first or second degree.

HOWEVER, it seems to me that the situation is ripe for an alternate solution which is an agreement by the beneficiaries for distribution of the estate in lieu of the terms of the will. Sometimes called a Family Settlement Agreement whereby the beneficiaries of an estate agree to a distribution different than that set forth in the will. If properly drafted and executed it becomes a binding and enforceable contract which the court is bound to accept in lieu of the will.

 

[justalayman]

While you are supposedly wrestling with your conscience you might want to consider this:

New York Penal Code Article 210 Perjury and other related offenses.

"§ 210.40 Making an apparently sworn false statement in the first degree. A person is guilty of making an apparently sworn false statement in the first degree when he commits the crime of making an apparently sworn false statement in the second degree, and when (a) the written instrument involved is one for which an oath is required by law, and (b) the false statement contained therein is made with intent to mislead a public servant in the performance of his official functions, and (c) such false statement is material to the action, proceeding or matter involved. Making an apparently sworn false statement in the first degree is a class E felony. "

Because somewhere in the process of probating the estate as intestate someone will be required to falsely declare that the deceased died intestate subjecting the applicant to a perjury charge of either a first or second degree.

HOWEVER, it seems to me that the situation is ripe for an alternate solution which is an agreement by the beneficiaries for distribution of the estate in lieu of the terms of the will. Sometimes called a Family Settlement Agreement whereby the beneficiaries of an estate agree to a distribution different than that set forth in the will. If properly drafted and executed it becomes a binding and enforceable contract which the court is bound to accept in lieu of the will.

Of course that’s with the reminder that is speaks to BENEFICIARIES, as in all beneficiaries. Given the will directs a testamentary trust be created I have to wonder if this family side step is still applicable. Of course all beneficiaries would include everybody named in the will whether it be specifically or by reference (as in; to each of my grandchildren). As well, regardless of the amount involved, a beneficiary is a beneficiary.