The New York Probate Lawyer Blog has provided a number of posts regarding the importance of determining kinship in estate proceedings. Other posts have discussed the necessity of determining a person’s domicile in estate matters. This blog contains same basic points as a reminder of the necessity to properly consider both these issues in estate matters.
With regard to kinship, many estate proceedings in the New York Surrogate’s Court require that a person’s distributees (i.e., next of kin) be fully determined and reported to the Court. Both Administration and Probate proceedings require that proper notice be given to such individuals. In administration proceedings, where a person dies Intestate (i.e., without a Last Will), the decedent’s distributees are the ones who will inherit the estate and who can be named as Estate Administrators. Section 4-1.1 of the New York Estates, Powers and Trusts Law provides the order of priority of persons who can inherit the estate in the case of intestacy.
When the distributees of a decedent are not fully known or when the closest living relatives are more distant such as in Cousin Cases, the Court can require a Kinship Proceeding or hearing to determine the appropriate next of kin. Finding a person’s kinship history is not always easy, especially when families have been separated for many years throughout the USA or the world. Obtaining the assistance of an experienced New York Probate Attorney and genealogist can be vital in these matters in order to secure a person’s inheritance. While not a matter for the probate court, a recent controversy regarding the identity of the relatives of the late gangster, Al Capone, shows the confusion and uncertainty that can surround proving the members of a decedent’s family.
As reported at TMZ.com on April 17, 2013, Reelz Channel is planning a new reality show entitled “The Capones”. However, a person named “Chris K. Capone”, who claims to the gangster’s grandson, has asserted that the show’s star “Dominic Capone” is not related to the deceased, Al Capone. As can be seen, family histories can become complicated and certainly difficult to prove without qualified assistance.
Turning to the issue of domicile, it has been discussed that the concept of domicile is determining the jurisdiction where a person intends that his primary home is located. Someone can have many residences in different states and countries but only one domicile. A person’s domicile typically determines the jurisdictional law that applies to a person’s Estate. For example, if a person is domiciled in New York, New York Estate law will be applied to identify the persons who are entitled to inherit from the estate. Additionally, marital rights may be found by looking at the applicable local law. The imposition of local Estate Taxes is another area where domicile is a determining factor.
In today’s mobile society where individuals can change their residence frequently and also have multiple residences, figuring out a decedent’s domicile and the applicable laws is not always easy. In a recent case, Estate of Vincent Hart, decided by Nassau County Surrogate Edward McCarty III, on April 12, 2013 and reported in the New York Law Journal on April 30, 2013, the Court was faced with a slightly different problem. The issue presented was whether the Surrogate’s Court or the Superior Court in Puerto Rico was the most appropriate Court to determine issues regarding a New York Will and a New York Trust. After balancing the equities, the Court determined that most of the substantive issues, which involved New York law, should be determined by the New York Court. As can be seen from the Hart case, multi-jurisdictional Estate Litigation issues can be quite complex and complicate the Estate Settlement process.
Continue reading →