Ask the Attorney: What to do if deceased father had no will and his girlfriend won't allow us back in house?

Dear Ask the Attorney:

My father passed away in February of this year and he lived with his girlfriend at her home.  We were at the home visiting when he passed away. His girlfriend said to my sister and I “anything that was your dad’s you can go through and have.”  We mutually decided to come back at a later date to have a grieving period.  After relentless efforts to try to visit to collect his belongings (including jewelry and sports memorabilia) she keeps avoiding the polite request to come there.  There was no will drawn.  I am curious as to what rights I may have in this matter.  My father’s ashes are also there.  I would like to have a portion if not all of them.  I’m at a loss of what I should do next.

SD

Today our guest blogger is Gary R. Botwinick, Esq.  Mr. Botwinick is a partner in the firm and chair of Einhorn Harris’ Taxation/Trusts and Estate Department. 

Dear SD:

I am sorry to hear about the death of your father.  Since your father did not have a last will and testament, he is deemed to have died intestate.  You may want to reach out to the Office of the New Jersey Secretary of State to determine if there is any record of your father preparing a will in the Secretary’s Will Registry.  Not all wills are included in the registry, unfortunately.  A will is only included in the registry if the individual for whom the will is prepared, or his attorney, advises the Secretary of State of the location of the will.

Assuming that your father did, in fact, die intestate, then someone will need to be appointed as the administrator of his estate.  The administrator is the individual who has authority to act on behalf of the estate.  The Surrogate of the county in which your father resided at the time of his death should be able to provide you information regarding the appointment of an administrator.  You and any other
children of your father are the “heirs-at-law.”  This means that you are entitled to share in your father’s estate.  Typically, an heir-at-law will also have the first right to be appointed as the administrator of an intestate estate.  If all of the heirs are in agreement as to the appointment of a single individual, then this process should be rather easy.  Additionally, if your father’s estate is below $10,000, then you may be able to submit an affidavit in lieu of administration, which is a more streamlined manner in which to administer a small estate.

With respect to your access to the former residence of your father, without a Court Order you do not have any right to visit the premises without the girlfriend’s consent.  I would continue to attempt to reach a mutual agreement with the girlfriend as to the manner in which to retrieve these items.  If she refuses to turn over the assets of the estate, you may seek a Court Order requiring her to turn over those assets.  Unfortunately, that will require that you
file a Complaint in the Superior Court, which will also require a filing fee
and, perhaps, the assistance of a lawyer.

Good luck.

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