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VIC Deceased Estate with No Will

Discussion in 'Wills and Estate Planning Law Forum' started by Jason T. Hudson, 15 July 2015.

  1. Jason T. Hudson

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    Hello and good day to you. I have several questions that I am hoping you can assist me with.

    My father passed away a couple of years ago and my mother passed away several years prior to him passing. There are five children. I am the middle child. We previously went through the admin process with a lawyer. Each of the children signed the admin papers which would have made myself and my older sister the admin to allow for a speedier and fair process. However, the youngest brother and youngest sister went to the lawyer to say they wanted to change their minds about who would be admins for my father's estate.

    This then stopped the admin process and in addition, at this same time, the lawyer then told us that it would be pointless to have an admin on the estate as she said the property was in foreclosure. This ended the lawyer/client(s) relationship and the admin process. We were refunded the 600+ dollar court admin process fee. *Later we would learn that the house was not in a full foreclosure status! Yet, my youngest sister lied about the foreclosure hearing and court time (she had all my father's mail forwarded to her address) so my oldest sister was unable to attend. This leaves us in the dark with the youngest sister essentially hoarding all of the necessary information we need to move forward.

    I am prior military and a veteran and my wife is still active duty so we live out of state. My youngest sister confiscated all my paperwork belonging to my mother and father (insurance, car titles, trailer titles, house bank loan info, etc.) so, other than the two youngest children, no one has any information about the house's property standing. We were told by the lawyer that all property (whether it is the house and land or the paid off items such as the camping trailer, motorcycles, Dodge Ram truck, household items, etc.) is to be 'legally' divided five ways. However, since my youngest sister confiscated all of the paperwork, she feels everything is hers. Since she took the title to the truck she transferred it into her name and now drives it instead of agreeing to that with the rest of us or selling the truck and dividing the profits equally. She has also sold the camper and taken many other items as her own.

    In addition, there is also a 50,000 dollar life insurance policy that was left by my mother for my father. We submitted the claim at MetLife; however the children were not named as beneficiaries. But, since my father passed away we are entitled to the insurance money (to be equally divided between the 5 children). MetLife is prepared to cut the check, however, they need one of us to submit paperwork showing who is the admin for the deceased estate.

    Questions:

    If the youngest sister is successful with naming herself as the admin for the estate (if the court allows for that to happen without the consent of the other children) and she sends that proof to MetLife, will MetLife cut one check for 50,000 or divide it equally between the rightful heirs (all five of us)?

    I found money in NYS Unclaimed Funds under my mother's name. I filled out the paperwork and included all of my sibling's information. I did the right thing and we were each issued a check in each of our names for $150.00. Will MetLife do the same or do they just have to cut one check to whoever presents evidence of being the admin on the estate? Also, what if she lies to NYS Unclaimed Funds and fails to list all the heirs to collect the entire 50,000 dollars for herself?

    When we initially went through the admin process each child had to sign and agree to who the admin would be. Is it possible for the younger sister to file for admin of the estate without the other children knowing or having a say-so? Keep in mind that she has taken all of our parents paperwork and many other items (my father's truck, my mother's old jeep, household items, camper, motorcycles, etc.)

    If she is able to put in paperwork to become an admin without the rest of us knowing and agreeing, will she then be able to send that admin to MetLife, and allow her to claim the entire 50,000 policy for herself? And if she does, what are the legal ramifications of her deceptive behavior?

    If she fills out the admin papers for the estate and knowingly (maliciously) leaves the other children off the paperwork as rightful heirs to the estate, then what are the legal ramifications?

    She has already taken property without the rest of the children's consent and I fear she is in the process of trying to claim the insurance for herself as well. I also want to know if the property is in foreclosure, but do not have the necessary bank information as everything was taken without our consent. Is there a way to determine the bank and status of the home? The property was listed under [Moderator redacted address] NY 13365.

    MetLife states the insurance money will be sent to NYS Unclaimed Funds office after several years. However, in order to claim the money there needs to be an admin for the estate. If the estate is in foreclosure and has been claimed or sold by the bank then how do we become admin (proof of being heirs) to claim the money from unclaimed funds?

    What legal rights do we have to dispute her taking the truck, camper, and other items as her own without family consent and what are the chances of us winning that case against her?

    Please help as this has been a very stressful situation. We are appalled at the greediness, lack of ethical behavior, and maliciousness by the youngest sister, whom we have no contact with. Thank you so much. Any helping information will help to ease this burden.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Jason,

    It's understandable that this has become more stressful and frustrating than it needs to.

    There is a difference between "administrator" and "beneficiary". If your father left no will, then under the laws of intestacy, any of his children are next in line to apply for a letter of administration. Whoever applies to court and obtains the letter of administration and is named by court as personal representative becomes the administrator of the estate. This means, this person is the legal representative of your father and can deal with his assets. However, they owe a fiduciary duty to all beneficiaries.

    Under intestacy law, your father's children are equal beneficiaries to his estate (because his spouse has passed). The administrator is not free to deal with your father's estate as they please. Therefore, they cannot transfer all assets to themselves or their friends/children. The only duty they owe is to the beneficiaries, as a whole.

    This means, your sister, if she is the administrator, can sell your father's asses (truck, camper) but cannot keep the money, the proceeds (minus costs) must be split five ways to your siblings. If she does not do this, she is in breach of her fiduciary duties. You, or any other beneficiary, can sue your sister for breach and she will most likely be asked by court to pay back this money (plus costs of court).

    I am not 100% sure what MetLife is. However, if this is your father's superannuation or life insurance, then this does not form part of the estate. If your father did not nominate a beneficiary to receive his funds (called death benefit nomination) then the trustee of this fund decides who receives the funds. You, and your siblings, can contact the fund and let them know you have entitlement. However, who actually receives the money depends on the trustee.

    Intestacy inheritance (inheritance where there is no prior will drafted) is complicated. It is best to contact a wills and probate lawyer to help you. The lawyer should be able to help you (or your siblings) to apply for the letter of administration, in which case, they may be able to demand the documents from your sister's possession.
     
  3. Tim W

    Tim W Lawyer

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    @Jason T. Hudson

    I am looking at your use of language and wondering if you an American, rather than an Australian?
    Although I agree broadly with @Sarah J, most of us here are Australians,
    and it may be prudent to factor that in, given how few of us would claim to be familiar with Wills and Estates Law in New York State....
     
  4. Sarah J

    Sarah J Well-Known Member

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    I agree with @Tim W. Was your father American or Australian? Where was he a resident at before he passed?

    If he has property in NY, it is best to deal with intestacy under NY law. As for your mother's NYS fund, I'm assuming this was not passed to your father and is still unclaimed. If this is the case, it will be dealt with separately to your father's estate. Again, this would be according to NY law, if the fund is in NY.
     

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