Location: New York, USA
I understand the estate will be distributed through the probate process, which could take quite a bit of time.
The girlfriend is describing herself as the deceased’s “spouse”, citing “common law marriage”. But my preliminary research indicates that New York does not recognize common law marriage. She’s sent both heirs waivers to sign and notarize which forfeit their right to claim administration and name her as the one in charge of the estate.
The estate includes at least one house worth a significant amount of money, some vehicles, personal property, and a few credit cards worth of debt.
Since this is about legal advice, I won’t ask whether it’s wise to trust the deceased’s girlfriend to distribute the estate funds fairly (though personally, I wouldn’t – especially if she’s viewing herself as his spouse. She’s already mentioned a nonspecific amount of “debt” that the deceased allegedly owes her, which would be taken from the estate if she were the administrator.)
My friend and his brother are the sole heirs to the estate. His brother is likely not interested in handling the estate. My friend has no experience dealing with anything like this and is unsure whether he should step forward to claim administration rights or forfeit them.
My questions:
- Is this feasible as a Do-It-Yourself situation for someone with no legal experience? (I imagine no)
- Would it be feasible for my friend to hire a lawyer to handle the bulk of the work, or would the cost of doing so likely be astronomical? (I imagine it depends on the lawyer?)
- If a lawyer is hired, would the legal fees be paid for from the estate, or would my friend have to pay out of pocket? (I imagine the former)
- Is selling the property mandatory if there isn’t enough money in the estate to pay off the credit card debt? (I believe yes)
Comments
Yes, hiring a lawyer makes sense. They get paid out of the estate. Look for probate attorneys.
With no will the estate needs to follow New York intestate succession rules.
DIYing probate is feasible in many circumstances, but far better to hire a lawyer if it will be contested.
The cost of having a lawyer administer the estate is going to depend heavily on how much money she is willing to spend contesting it.
Don’t let them fall for her shenanigans. You’re correct, NY doesn’t recognize common law marriage, because New York is a joint tenancy state. New York recognizes joint tenancy with rights of survivorship as a valid way for two or more people to own property together. In a joint tenancy, when one owner dies, their share automatically passes to the surviving owner(s), bypassing probate. However, New York also recognizes other forms of co-ownership, including tenants in common and tenancy by the entirety. They weren’t legally married and if her name isn’t on any of the deeds she has no claims and your friends don’t need to sign anything at all.
They are going to really need a probate attorney. Especially if they’re not well versed in deeds and property transfers, real estate etc. She’s probably going to throw a fit but it sounds to me like she doesn’t have enough money to throw too big of a fit considering the facts.
They could definitely navigate some of this alone, but I wouldn’t be willing to risk losing something just because they overlooked a step.
Hope it all works out for you❤️