New York intestate estate

On Jun 27, 6:28 pm, c...@country-day.com wrote:
> both of my parents died intestate.

First of all, where did your MOM reside, when she died first?  That's which state's law will apply to HER estate.  When the first parent died, that parent's separate property should have been distributed then, according to the intestacy laws of her state (I am not a NY lawyer and do not know what those laws say and at this point don't even know if NY law is the one that would apply).

OTOH if in fact your Mom had no separate property of her own (i.e.if it was all property held jointly with your Dad) then it all passed automatically to Dad  when Mom died.   You will have to consult a local lawyer and bring all the facts and documents you have for him to review, if you want a meaningful opinion on whether any of Mom's estate should have been distributed to her children at that time, but my guess is, none, since there was a surviving spouse and no will.

>  My father, the last to die, died 5
> years ago in new your state, where my brother still resides.  I who
> live in a different state have been after my brother for years to give
> me any information about my parents property.  He has refused.

Letting this drag on "for years" was not a good idea on your part.  Why do you assume this was all your brother's job?  You, as much as your brother, were a prospective heir -- and if you knew there was no will, you should have known that you and your brother had equal standing to look into matters legally and get this wrapped up.  (With no written document there is no possibility either of you could have been "disinherited" or written out of a will that doesn't exist.)

Even though you live in another state (How far away are you?   Is it that hard to come back to the ancestral home once in a while to see for yourself how things are going?   How much property is at stake anyway?) that is no excuse for dropping the ball and leaving it all up to your brother, especially where you must have suspected long ago that your brother was either (1) neglecting to do anything, which is bad enough, or (2) affirmatively helping himself to your parents' property, to your detriment as his equal heir, which is even worse.

> I recently found out that the property is going up for auction due to
> unpaid taxes.  I have also found out that the property never went to
> probate!

Sure sounds like bro never did anything (Choice 1).   Of course, he may _also_ have been pursuing Choice 2 -- have you kept any tabs at all on what happened to the rest of the property, besides the real estate?   Is the furniture, jewelry, etc. still there in the house, untouched?   If not, make Bro give you an accounting.   If he refuses, _you_ should be the one to open probate, and then you can have the court make him do that and disgorge any ill-gotten gains.   Your local lawyer can help you do that; even if you are out of state; your local lawyer will associate with a lawyer in NY to file all the papers, etc. as well as to investigate and inventory the property to trace its whereabouts.

You say, "the property", as thought the house was all there was to the estate.  Didn't your Dad have bank accounts, IRAs, cash under the mattress, Krugerrands in the attic, stocks and bonds, or something else liquid and possibly income-producing?  What was he living on, besides Social Security?  Cars, boats, valuable art, jewelry, antique furniture?  A working business that was generating income and has value?   Crops, livestock, tools of his trade?  Anything he owned that has value is part of his estate, not just the house.   Do you have any idea what was there?  If not, you're pretty late getting on the ball to find out.   Best hope it's not _too_ late, but you won't know until you ask.  Make that appointment to consult a local lawyer NOW, while you're thinking about it, or you'll put it off for another few years and then it WILL be too late.

>  I am willing to pay the taxes but if I do this I want
> absolute control off all the property since my brother has failed in
> all aspects of this matter.

Don't do anything without consulting a local lawyer first, but do that quickly, or you may lose legal rights.  You're probably better off taking control of the estate (through your lawyer of course), getting the taxes paid (from Dad's bank account, if Bro hasn't already purloined it) and proceeding with probate.   At the end of that process, after deducting all expenses of estate administration as well as your Dad's legitimate debts (including ongoing morgage and tax payments on the house, utilities, etc. as well as his funeral bills and medical expenses) what is left over will be divided equally between you and your brother (assuming you 2 are the only heirs).   You are also entitled to be paid a reasonable fee (subject to court approval) for acting as administrator of the estate, if you do so, or if you hire an independent third party (such as a lawyer) to do so.

A far riskier approach would be to let the house go to a sheriff's sale for the unpaid tax, show up at the sale, and buy it on your own account at a below-market-value price.  Like I said, don't try this at home, boys and girls, without specific, detailed legal counsel from someone you're _paying_ to advise you and who knows all the facts.   That approach would also do nothing at all toward helping you resolve what heppened to the REST of Dad's property.

>  However, he refuses to cooperate. Is
> their a way for me to get all his rights revoked as far as the
> property goes?

He still gets to be an heir, even if he's been a lousy administrator; but it sounds like BOTH of you were lousy administratofs so far, allowing the matter to be neglected for so long.  Your lawyer can help sort this out.

Don't worry about not being able to pay the lawyer up front: check first, fo course, when you call to make an appointment, but most estate-administration lawyers will wait (or are legally required to wait) until they get court approval, before they can take a fee, and even then it comes out of the estate's funds, not yours.  Good luck,
--
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