If my father named my wife as executrix and sole heir of all of his property, does it need to go to probate?

UPDATED: Aug 18, 2012

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If my father named my wife as executrix and sole heir of all of his property, does it need to go to probate?

My wife’s father will states that he does “give, devise, and bequeath all of the rest, residue, and remainder of my estate, both real, and personal and wherever situate to my daughter per stirpes, and not per capita”. When he died, my wife was co-owner with survivorship of the house he lived in, however there were also three very small undeveloped parcels of land 2 in one state and 1 in another state that her name was not attached to. The lawyer who wrote the Will is now telling us that the estate has to go to probate in both states. Why, if he left her all real and personal property?

Asked on August 18, 2012 under Estate Planning, New York


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

I am so sorry for your loss.  The house in New York with survivorship rights passed to your wife automatically and does not need to go through probate.  But in order for her to be able to claim inheritance rights the court must appoint her as the executrix and allow her to transfer the property in the other state as well as "marshall" (collect) all the other assets.  An ancillary proceeding must be held in the other state to transfer the property there.  The lawyer is correct.  Good luck.

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