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Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 99423
Experience:  Fully licensed attorney in Texas in private practice.
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My Mother died in New York State in 2003, her Will was filed

Customer Question

My Mother died in New York State in 2003, her Will was filed with the county court where she lived, but I did not initiate probate. At the time of her death we owned a home in Florida as Tenants in Common. Now, I want to sell the home and the title is not cleared. My Mother's Will makes me the Executrix. I have a brother, but she did not leave him any portion of the home because of his drug addiction and other problems. This is stated in the Will. Where should probate be initiated now, and how long should this take. I have a buyer and I paid off the house myself.
Submitted: 4 months ago.
Category: Estate Law
Expert:  Ely replied 4 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am very sorry for your loss.

1) It is not uncommon for interested parties beyond that of family to initiate probate. Anyone who is family, or stands to possibly inherit, may initiate probate. Even a creditor can, at times. Whoever initiates it does not affect how the Will is handles (if there is a will).

2) What I am unclear about is this:

a) What state was probate filed in? You only stated that it was filed in the county where she lived, but that does not tell me what state that was.

b) Were you appointed as Executrix in that probate case? If not, why not?

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 4 months ago.
I stated that her Will was filed in New York State court where she lived. I, also livr in New York. The house in Florida was always rented out. No probate has been initiated by me or anybody else. I was told by the Florida Title Company I had to initiate probate because the Deed was no set up as Joint Tenants right to survivorship.
Customer: replied 4 months ago.
Did you get my response?
Expert:  Ely replied 4 months ago.

Yes, thank you. I am typing out my answer now. One second please...

Expert:  Ely replied 4 months ago.

Ah, okay. Thank you for clarifying.

Probate should be initiated where she lived and where the bulk of her estate was. This means NY. 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 (those that do not have a pay on death clause) - 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 names of the heirs.

If there was a Will, the beneficiaries are decided per the Will. If there was no will, the beneficiaries are decided by default succession law of the state.

An Executor can also use the Letters of Testamentary to take her name off a deed.

Now here is where you have a bit of a conundrum. Florida may not recognize NY's Letters of Testamentary. If not, you would actually need to file what is known as an ancillary probate in Florida as well. See HERE. This would essentially be a "quick" probate just to take care of the deed in FL.

So the primary probate would be in NY, but with an ancillary probate proceeding in FL as well.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Customer: replied 4 months ago.
The only asset my Mother had was the house in Florida. I was told by the Title Company that probate should be initiated in Florida. As you stated the bulk of her assets are in Florida. Would it be correct to do so?
Expert:  Ely replied 4 months ago.

Yes. The Florida court would have what is known as in rem jurisdiction, based on her assets being here. So probate could arguably be filed in FL, simply.

However, you still would have to deal with possible complications with NY since she passed away there and may have some assets left there, so keep that in mind.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.