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Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 100047
Experience:  Fully licensed attorney in Texas in private practice.
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My father recently passed and his apt sealed. My step-sister,

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My father recently passed and his apt sealed. My step-sister, who came in from out of state, asked that I fax a notarized letter to the surrogate's court allowing her and my father's common law step daughter to search the apt for his clothing and papers for funeral arrangements. (I am the only child from legal marriage). I'm not sure what documents or items my father left behind that concern me but if he did, how will I know and make sure I get them?
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your loss. Can you please tell me:

1) Did your father have a Will? Or, not sure?
2) If he did, do you have a copy?

You seem to indicate that you are not sure, but I want to double check.

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 3 years ago.

Unfortunately, not sure.

Thank you for your clarification and no worries.

Did your father live in NY?
Customer: replied 3 years ago.

Thanks for your condolences btw. Yes, NY.

Of course.

Okay, I understand.

Allow me to explain how probate works and what one's options are here.

When someone passes away, then their estate has to be distributed. The problem is that without probate - with assets such as titled property or bank accounts - this is hard to do. This is because you cannot switch over the assets without an order from the probate court, and simply a Certificate of Death will not do. A Certificate of Death simply states that someone has passed on, but does not give you the right to really do anything in the deceased's name.

So one files probate. Once probate is filed, the Executor of the estate gets something called a Letter of Testament/Administration (hereinafter "Letter"). This Letter will allow the Executor to switch over the assets from the deceased individual to whoever will own the property. It is like a "Power of Attorney," but from the Court. Without that Letter, there is no way to transfer titled property and switch the assets into the beneficiaries' hands.

Another part that the Executor plays is distributing non-tiled property as well, in accordance to the Will, if any, and if not, then by default succession laws, here. Under them, you and her would each get half if no other siblings exist, and if the decision as to what half is exactly is up to a Judge if the two of you cannot agree.

Now, what someone in your situation wants to do first is to ASK her:

1) Did he have a will? Do you know? If so, can I see a copy?
2) I want to also enter the property. Let's do it together.

Unless the Will specifically makes her an Executor, nothing states that SHE has to be the one to enter the property, or, both of you cannot. The landlord is acting out of default doctrine, but whoever is executor can override this, or if both of you agree, then both can enter.

If she is executor and does not give you half, or, whatever is left in the decree if anything, you may seek relief in Court.

I hope this helps and clarifies. Good luck.

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Customer: replied 3 years ago.

Ok, thank you for your answer. She has already accessed the apt as the letter was faxed this afternoon. I unfortunately, was not there to enter with her. So not sure what's there or what she's taken. If she now has access to things and documents and doesn't want to disclose these, other than probate, what can I do?

If she now has access to things and documents and doesn't want to disclose these, other than probate, what can I do?

Well other than acting under probate, you have no real recourse.

However, if you act under probate, you can force an accounting of the estate, including any items she may have taken for herself. But you would have to force this issue if she does not provide this accounting and so on, before the Judge.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
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