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LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 10236
Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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I recently suffered a death in the family and the estate is

Customer Question

I recently suffered a death in the family and the estate is being Probated in New York. I am the executor of the Estate and have hired an attorney in New York that is experienced in Probate. The attorney has seen a clause in the Will that he is unsure about and can not give a definite interpretation on. The clause leave the remainder of the estate to three people and there is room for seeing it as a succession or a split. The language is a follows: "First to ***** *****, Second to Jane Doe, and Third to ***** *****." With Jane Doe being dead, does that mean ***** ***** and ***** ***** split the remainder of the estate 50/50 or does ***** ***** get the 100% of the remainder?
Submitted: 11 months ago via Cornell Legal Info Institute.
Category: Estate Law
Expert:  LegalGems replied 11 months ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Customer: replied 11 months ago.
Any response as of yet or do you need more time?
Expert:  LegalGems replied 11 months ago.

I apologize; the site was having technical issues and apparently my reply did not "stick".

The reason the attorney cannot give a definitive answer on that type of clause is because it is ambiguous; it is not traditional testatment language, and can be construed in 2 ways:

1. the property first goes to the first named heir, then upon their death, to the second named heir, etc.

2. the property is divided among all named heirs equally.

The court, when the language is ambiguous, will look to the testator's intent, based on other evidence (ie if any heirs were estranged, the rest of the language of the will, etc). If the 3 heirs are children, the court may determine that the testator intended that all children divide the inheritance equally. If one of the heirs has passed, normally the will addresses that also. Typically the will requires the heir to survive the testator a certain amount of time (ie 120 hours); if so, then the property passes to that heir, and then becomes a part of the heir's estate, and goes according to the heir's estate plan.

In situations where the language is unclear, the probate attorney will typically file a petition with the court, asking for direction in how to distribute the property. This helps avoid personal liability on the part of the executor, should one of the heirs sue, based on the ambiguous language. The court can then decide whether a provision is ambiguous and should be stricken from the document, or whether it is not ambiguous and how it should be applied.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Expert:  LegalGems replied 11 months ago.

Hello again; just checking in to see how things worked out;
if you have further questions please don't hesitate to reach out to me here on Just Answer.