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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 33707
Experience:  15 yrs estate law, real estate. Wills/Trusts/Probate
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We live in the state of New York: My sister passed away in

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We live in the state of New York: My sister passed away in Dec. of 2011 leaving a will with her son getting everything. The lawyer she hired never put it through probate now her son has passed away leaving no will. My sister's lawyer quickly put my sisters estate in probate but she apparently does not know estate law very well because every time I ask a question she gives contradicting answers. I don't want to do anything wrong, she is telling me that my sister's estate will still go to her son and then her son's estate will go to his half sister (which is not my sister's child and we have not seen in 20 years). What I am unsure about is that, if this is true I don't understand why she told me that we need to have an estate sale and then sell the house and use the proceeds to pay off the mortgage and all my sister's debt. It would seem to me that if after probate the estate is my late nephews and subsequently his half sister's then she would be responsible for taking care of everything, including the house and debt. I may be wrong but I don't want to go selling things then have probate court say we have stolen the half sister's estate.
Hello and thank you for using JA! My goal is to provide you with excellent service and help with your legal problem.
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When someone passes and leaves assets to a beneficiary, before that beneficiary gets anything, the assets are first used to pay for any last expenses, administrative costs, and to pay off any debts the deceased had. Only after all those things are paid off does the beneficiary get what is left.
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So sister's estate would have to pay off all her debts first and then whatever is left would go to her son's estate. Son's estate would then have to pay off all the debts of son before half sister would get anything.
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It is a step down process where each estate has to be settled before the next estate can receive anything.
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So what you have been told is correct.
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Thanks.

Barrister

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If you need further help, just reply to me via the “REPLY” button and I will be happy to continue.

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I cannot enter into an attorney client relationship, this is a public forum, and all posts are available for public viewing. There is no duty of confidentiality that attaches to any posts. The information provided is not a substitute for a local attorney’s legal advice.

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Customer: replied 3 years ago.
Thank you. Because the lawyer first told me not to touch anything in the house because it was the half sisters, then told me I had to sell everything and take care of the debt of my sister I was confused and didn't want to do anything that would come back on me. I assume that once my sister's estate is settled I can step back because I am not the executor of my nephew's estate. Because he had no will I assume the court will appoint his half-sister to take care of everything. I thank you very much for your advise it puts my mind at ease a little.
From a technical standpoint, if there was enough cash in sister's estate to pay off all her debts, then there would be no need to sell the assets and they could just be given to whoever is acting as Administrator for her son's estate and they could handle selling the items and converting it cash. Either that or they could just pass the actual personal property to the half sister and let her do what she wanted with it.
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But yes, if you decide to liquidate sister's estate and then after paying all expenses just deliver a check to the Admin for son's estate, then your job is done as you don't have to settle the son's estate.
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As an aside, you are entitled to a fee for acting as Executor/Administrator for your serviced from the estate at the following rate. This is in addition to any expenses for attorneys fees or other administrative matters. So you don't have to administer sister's estate for free.
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The Surrogate’s Court Procedure Act sets forth the executor fees rates as follows:
(a) For receiving and paying out all sums of money not exceeding $100,000 at the rate of 5 percent.
(b) For receiving and paying out any additional sums not exceeding $200,000 at the rate of 4 percent.
(c) For receiving and paying out any additional sums not exceeding $700,000 at the rate of 3 percent.
(d) For receiving and paying out any additional sums not exceeding $4,000,000 at the rate of 2 1/2 percent.
(e) For receiving and paying out all sums above $5,000,000 at the rate of 2 percent.
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Thanks
Barrister
Customer: replied 3 years ago.
There really is no cash to settle the estate as my nephew cashed in her life insurance policies(she had over $400,000 in insurance)and must have spent all the money because I can find no evidence that any remains. His bank account has a balance of only $1200.00 and my sister's only has a balance of $447.00. (I know this only because I got their statements in the mail) He never paid off the bills or mortgage and never had anything taken out of her name or reported her deceased to her creditors he just paid the bills as they came in every month so at least everything is current, but there is still a $72,000 mortgage.
In that case, then it probably would mean that you would have to liquidate all sister's assets to pay towards any debts. If she didn't have enough to pay everyone off, then any remaining creditors just lose out and there would be nothing to transfer to son's estate. But remember that your fee for acting as Administrator is paid before other creditors, so you get paid first right after paying any burial or funeral expenses.
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Thanks
Barrister
Customer: replied 3 years ago.
Her funeral and burial expenses were paid by my nephew at the time of her death but because my nephew had no life insurance that I have found evidence of, I personally paid for all his funeral and burial expenses.
Well, then technically you would have a "creditor claim" against his estate for any funeral costs that you incurred on his behalf. You would be entitled to reimbursement from his estate for your costs.
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Thanks
Barrister

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