FAMILY FINANCE: What to expect when there's no will

Lynn Brenner | Family Finance

May 11, 2008

How do I find out if my father-in-law left a will? He died in March 2006, leaving three houses and other assets. His widow, who is not the mother of his six children, told them that "their father did not leave anything for them."

You've written that if someone dies without a will in New York State their assets are divided between their surviving spouse and children. We have reason to believe that my father-in-law did not leave a will. But his wife doesn't answer his children's calls or return messages, although they had an excellent relationship before his death. Three of the children want to find out if there was a will, just on principle; the others say just forget about it. How should we proceed? HD via e-mail

The siblings who want to pursue this are right that it's not just a question of money. Family finance is fraught with love, anger and potential feelings of betrayal, especially when it involves parental legacies.

Wills are public documents. Anybody can go to Surrogate's Court in the county where a decedent lived and read a copy of his probated will. (Probate is the legal procedure in which the court accepts a will as valid.)

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If your father-in-law left a will and it was filed for probate, his children would have been notified. 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, under the state's intestacy law his property would be divided between his children and his surviving spouse. But that law only applies to property that can be left through a will. It doesn't cover assets that pass outside a will, such as jointly owned property and accounts with named beneficiaries. An asset with a named beneficiary goes directly to that person. A jointly owned asset automatically goes to the surviving owner.

In other words, 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" accounts, says John Barnosky, a Uniondale estate lawyer.

Barnosky suggests you go to the county clerk's office in the counties where the houses are located and check their title for the last owner of record. If your father-in-law put the houses in a trust for his wife's benefit, for example, the trust would be listed as owner of record. If the houses were in his name alone, however, the only way they can pass to a new owner is via a will or under the intestacy law.

If there's an asset in his name alone, his children should file for an intestacy proceeding.

As a first step, their lawyer should write a letter to his wife. "I'd 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,'" Barnosky says.

If your father-in-law transferred everything to his wife through beneficiary designations and trusts, his children can challenge the legitimacy of those transfers in Surrogate's Court.

Overturning them is like overturning a will: To succeed, the children must show the transfers were improperly executed, or that their father lacked mental capacity to understand what he was doing, or that he acted as a result of undue influence.

Send questions to Family Finance, Business Desk, Newsday, 235 Pinelawn Rd., Melville, NY 11747-4250, or e-mail to Bfamfin@aol.com. Include your age, income and a list of major assets. Letters and e-mails can't be answered personally.