I'm looking for a template of a legal text that is used in situations
when someone has died intestate (ie. without a will), and which
ensures the heirs to the estate, including the spouse of the deceased,
are bound to what the law stipulates in these situations. I'm facing a
very unusual (and painful)  situation whereby my mother has
'appropriated' my deceased father's estate and not distributed
anything to his other heirs (ie. my sister and I). I need to add that
my father died without leaving a will. To complicate matters, my
father (a US citizen) died in Spain. I understand that Spanish (or
European in general) law very much resembles US law in this respect.

Thank you in advance for your help in this matter.

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Request for Question Clarification by aceresearcher-ga on 10 Jan 2003 09:50 PST

markblo,

In what state did your mother and father reside?

Regards,

aceresearcher

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Request for Question Clarification by aceresearcher-ga on 10 Jan 2003 10:19 PST

markblo,

In addition to the deceased's state of residence, in order to
definitively determine intestate estate allocations, the following
information is required:
1) How many children (living or dead) of the deceased
2) How many of those children were also blood children of the spouse
3) How many children of each deceased child (grandchildren)
4) Whether either of the deceased's parents are still living

In order to give you an accurate answer, all of the above information
should be posted here in a Clarification.

Thanks!

aceresearcher

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Clarification of Question by markblo-ga on 10 Jan 2003 23:59 PST

aceresearcher,

Many thanks for your prompt response. My father was a native of the
State of New York but died in Spain. I understand from an initial
round of enquiries that the Spanish authorities applies the laws of
the country of the deceased, in other words the laws of the State of
New York.

The deceased had two children, myself and my sister. Neither my mother
or father had children from any other marriage. My sister and I both
have one child, so there are two grandchildren in the family. None of
the deceased parents are alive anymore.

Please let me know if I can provide any further information you may
need.

Many thanks in advance.


MarkBlo

MarkBlo,

First of all, I need to let you know that I am not an attorney, and
neither myself nor Google Answers can be considered a valid, binding
legal resource. I can point you to the applicable laws and procedures;
however, you will definitely want to retain an attorney to protect
your rights in the disposition of your father's estate.

Because your father's parents are no longer living, you and your
sister are both still living, and you are both full natural (blood)
children of both your parents, your situation is relatively
uncomplicated compared to how these things usually go.

"New York Intestate Succession Laws"
from the CCH Financial Planning Toolkit:

"1. Surviving spouse. A surviving spouse is generally first in line to
get any assets from the intestate estate. However, the amount a
surviving spouse is entitled to varies as follows:

- A surviving spouse is entitled to the entire intestate estate if the
decedent is not survived by issue (i.e., descendants like children and
grandchildren). If the decedent is survived by issue, a surviving
spouse gets the first $50,000, plus one-half of the remaining property
in the intestate estate."

This means that $50,000 off the top of the estate, plus 1/2 the
remaining estate, goes to your mother.

"2. Heirs other than surviving spouse. Any part of the intestate
estate not passing to the surviving spouse as indicated above, or the
entire intestate estate if there is no surviving spouse, passes as
follows to:

- Decedent's issue..."
http://www.finance.cch.com/pops/c50s10d190_NY.asp

This means that you and your sister split 1/2 of (estate minus
$50,000) equally, or that you each get 1/4 of (estate minus $50,000).


The applicable part of New York State Consolidated Laws is Chapter
17-B, Article 4-1.1, DESCENT AND DISTRIBUTION OF AN INTESTATE ESTATE:
http://caselaw.lp.findlaw.com/nycodes/c38/a14.html


Just as important to your case is the fact that New York laws require
administration of intestate estates. Your mother cannot just keep
everything and go on if nothing has happened. Your father's estate
MUST be processed through the courts.

One thing you and your sister can do is petition the court to serve as
administrators of your father's estate.

The applicable part of New York State Consolidated Laws is Chapter
59-A, Article 10, INTESTATE ADMINISTRATION:
"S 1001. Order of priority for granting letters of administration
  1.  Letters  of  administration must be granted to the persons who
are distributees of an intestate and who are eligible and qualify, in
the following order:
  (a) the surviving spouse,
  (b) the children..."
http://caselaw.lp.findlaw.com/nycodes/c116/a11.html

While your mother will most likely be appointed primary administrator
according to the above provision, petitioning the court to be granted
administrative rights will get the administration of your father's
estate into the legal system.
http://caselaw.lp.findlaw.com/nycodes/c116/a11.html


I urge you and your sister to not delay, and to retain the services of
an attorney immediately. The longer you delay, the greater the
possibility that assets may be disposed of, or hidden, without your
(and the court's) knowledge.


Search Strategy

"New York State Consolidated Laws" intestate
://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=%22New+York+State+Consolidated+Laws%22+intestate&btnG=Google+Search

New York Consolidated Laws on Findlaw.com:
http://caselaw.lp.findlaw.com/nycodes/index.html
http://caselaw.lp.findlaw.com/nycodes/index.html


Before Rating my Answer, if you have any questions, please post a
Request for Clarification, and I will be glad to see what I can do for
you.

I hope that this Answer provides you with exactly the information you
needed, and that you are able to resolve the situation without a lot
of friction within your family.

Regards,

aceresearcher

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Clarification of Answer by aceresearcher-ga on 18 Jan 2003 21:20 PST

Markblo,

Your situation is so complex, that I must recommend that you
immediately consult an attorney in the United States. At this point,
you have 3 options:

1) Let the situation drop (which you have indicated you are not
willing to do);
2) Get an attorney in the State of New York, and get the legal process
working for you to salvage as much of the situation as possible; or
3) Get an attorney in the State of New York, and use the threat of #2
to force your mother into signing an in-depth, binding legal document
that gives you some assurance you will eventually inherit.

Here's my own personal opinion:
1) It's up to you, but I wouldn't do this; what your mother has done
is just plain wrong, and unfair to you and your sister;
3) It's my understanding that this would essentially legally be
considered as you colluding with your mother, who has already
committed at least one seriously illegal act by not declaring your
father's death to the State of New York and not having his estate
administered through the Courts; furthermore, an attorney would likely
not be willing to assist you with this, as they would probably face
legal ramifications for doing so.
2) is my recommendation. However, you need to be aware that this
option will likely cause a serious split between your mother and you
(as well as perhaps between your mother and your sister), if one has
not already occurred. Be prepared for the worst, but hope for the
best. Without further delay, find a capable, experienced estate
attorney who is skilled at keeping negotiations calm, with as little
acrimony as possible.

You have my best wishes for a positive outcome.

Regards,

aceresearcher

I am entirely satisfied with the answer. Thank you aceresearcher-ga.

Another point of inquiry relates to what is in the estate, and what is
not in the estate. For example, insurance proceeds are not ordinarily
part of the estate. Certain jointly held assets may pass to your
mother by operation of law, based on the way they were held or titled.

I consulted an attorney within a week of my father passing away
because I had tangible evidence that my mother wanted to keep all of
my father's estate to herself.  However, as I was based in another
country (in Switzerland) and all the 'events' were taking place in
Spain, 1500 miles to the south, in a completely different culture and
in a frankly lawless environment, many of my father's assets
(consisting of five plots of prime building land and a recently built
villa)were sold and the proceeds sent to another jurisdiction (to
Gibraltar, a British colony 75 miles from the place my parents lived -
and where my mother now lives.

Three and a half years after my father died, no formal inheritance
procedure has yet taken place. After a lengthy court case, my mother
settled out of court. I received a healthy sum of money, but not
everything I was owed. I continued to try to have my mother accept
some form of tutelage or binding agreement that she couldn't spend the
capital of my father's estate, but rather live off the interests, but
she has refused to contemplate this proposal and has instead agreed to
sign a notarized document indicating that my sister and I, and our
respective offspring, would be the prime beneficiaris of her will.

I am now very close to going back to the courts to ensure that a
proper succession occurs. She is in a delicate position, she hasn't
declared my father's death to the authorities, has paid no death
duties and would rather not think about what other tax 'oversights'
she's been involved in. As I said the Spanish have a very lax attitude
when it comes to some legal issues.

My objective now is to either ensure that the estate is maintained for
either myself or my sister and our offspring when my mother dies by
ensuring she lives off the usufruct or alternatively that I force a
dissolution of the estate and share the proceeds according to the
distribution foreseen by the law of the State of New York. However, as
the bulk of the assets have been spirited to another jurisdiction, I
will have a difficult time trying to get my fair share.

There was one question that I failed to ask you originally and which I
thought off in my sleep (of all places) is whether I can address my
case to a court in New York rather than go through the Spanish legal
system.

Again many thanks for your help. I look forward to hearing from you.







I took my case to a Spanish court, but as an outsider 


I am by no means in a comfortable situation. A lot of things have
already happened and I have, in many ways lost more than