New York Probate Lawyer Blog

The New York Probate Lawyer Blog has discussed different areas concerning estates of decedents such as Last Wills, Kinship, Probate and Administration, as well as Article 81 Guardianships. In many instances there is a combination of issues and problems that estate beneficiaries and fiduciaries face before estate settlement can be finalized. A recent case entitled Estate of Veronica Tesler, decided by Kings County Surrogate, Diana A. Johnson on January 11, 2012 and reported in the New York Law Journal on February 6, 2012, provides a typical example of estate administration that faced many problems.

In Tesler, the decedent, Veronica Tesler, had been determined to be incapacitated prior to her death. As such, the Court had appointed Guardians for her person and property. Also, prior to her death, Veronica had signed a Last Will in which she left her estate to her nephew and appointed him executor.

While Veronica's preparation of a Last Will was sound estate planning, the nephew predeceased Veronica. Apparently, Veronica did not provide for any alternate disposition of her property. The result was that she effectively died intestate (i.e. without a Will), because there was no provision in her Will for an alternate beneficiary. Tesler demonstrates that it is always best to provide for alternate beneficiaries in a Last Will as well as alternate Executors. The Brookyn Probate of Veronica's Will was thwarted by this apparent oversight.

Since Veronica died intestate her estate beneficiaries needed to be determined by the intestacy statutes of New York. Here, Veronica's maternal cousins filed a petition with the Court to obtain Letters of Administration. However, since the maternal cousins could not provide information regarding Veronica's paternal next of kin ("distributees"), the Court appointed the Public Administrator to handle the estate affairs. The Public Administrator is a public official whose function is to administer estates in various circumstances such as where no family member or no family member of close enough kinship in the case of intestacy is available.

After the Public Administrator completed the administration of Veronica's estate such as collecting assets and paying bills and debts, the Public Administrator filed an accounting with the Surrogate's Court. It was at this time that the maternal cousins were required to demonstrate at a Kinship Hearing that they were Veronica's sole distributees and entitled to receive her entire estate.

Kinship cousin cases can be very complex and require proof in the form of documents such as birth records, death records, marriage certificates, obituaries, census reports and also witness testimony to show which persons actually are the decedent's sole surviving next of kin. I have represented clients in these proceedings. The use of professional geneologists and investigators is also essential in proving kinship.

In Tesler, the decedent's maternal cousins were finally able to establish to the satisfaction of the Court that they were the decedent's sole surviving heirs. The case shows how despite preparing a simple Will, very complicated estate administration proceedings may be needed to settle an estate. Advice from an experienced New York Estate attorney is essential both to prepare an estate plan that can avoid complicated litigation and to help family members succeed in protecting their inheritance rights.

Continue reading "A New York Last Will May Require Proof Of Kinship" »

The New York Probate Lawyer Blog has reviewed the many instances where family status or kinship can affect an inheritance. In a blog post dated November 22, 2011, there was a discussion regarding the determination of kinship in order to establish a person's right to receive a share of a decedent's estate.

Most cases in New York Surrogate's Courts, including Manhattan Probate proceedings or Westchester intestate Administration proceedings, require that a decedent's heirs be specified so that their rights are protected and the estate is distributed correctly.

It is not uncommon to find disputes among heirs and other estate beneficiaries concerning the validity of a claim as to heirship. Issues involving adoption, paternity, artificial insemination and other questions as to family relations can become fierce battles, especially where the outcome involves large sums of money in the form of an inheritance.

One particular area where controversy can occur is the determination of a decedent's spouse. While it may appear to be routine to ascertain a person's wife or husband, difficulties can arise, particularly where individuals live in many different states and countries during their lives all of which have different rules and recording keeping methods for marriages and divorces. The determination of a decedent's surviving spouse is essential for many reasons. From a tax standpoint, the Federal and New York estate tax laws provide that assets passing to the surviving spouse qualify for a 100% marital deduction. A surviving spouse also has many rights under New York estate laws including the right of spousal election. A spousal right of election gives a surviving spouse the right to receive a share of the decedent's estate notwithstanding that the decedent may have disinherited the spouse. The New York right of election is provided in Estates, Powers and Trusts Law section 5-1.1-A.

In order to invoke the benefits of the statute, an individual must, in fact, be the decedent's surviving spouse. A recent case entitled Will of Newman decided by Surrogate John M. Czgier, Jr., in Suffolk County Surrogate's Court on September 26, 2011 and reported in the New York Law Journal on November 1, 2011, shows how important it is to closely examine the facts supporting a claim of spousal status.

In Newman, the decedent's spouse filed a right of election. It was determined after investigation that the surviving spouse and the decedent had gotten married on a date 3 months before the surviving spouse finalized a divorce from a prior marriage. Since the surviving spouse's prior marriage was not dissolved before the marriage to the decedent, the marriage between the decedent and the claiming surviving spouse was void. Thus, the right of election could not be asserted due to the invalidity of the marriage.

New York estate planning is also affected by spousal rights. Wills and trusts can be drafted to take advantage of the estate tax marital deduction and bequests can be provided to insure that spousal rights are satisfied.

I have represented estate fiduciarys and claimants in situations where spousal claims must be determined and resolved. I also provide assistance to clients to develop estate plans that take into account a spouse's right to share in an estate.

Continue reading "New York Inheritance Can Depend on Family Status Such As A Valid Marriage" »

All New York Probate and Administration cases require an accurate determination of the decedent's distributees or next of kin. In Brooklyn probate cases, as well as those throughout New York, proper notice of the Probate filing must be given to these persons. In Queens Administration proceedings, like all other such proceedings in New York, not only must distributees be ascertained for purposes of proper notice, their identities must also be established since the distributees are the direct beneficiaries of the estate.

While identifying next of kin may seem routine where a decedent is survived by a spouse or children or grandchildren ("issue"), many person's die without any easily identifiable heirs. In such cases estate settlement requires that kinship be determined.

Kinship searches require extensive examination of birth, death, marriage, naturalization and other records to determine not only the names of possible heirs but also to eliminate the possibility that living or deceased relatives did not have any other children or descendents. This is essentially known as closing out the class. Surrogate's Court kinship cases involve meticulous evidence, much of which can be obtained through the employment of a professional genealogist.

Many kinship proceedings such as Cousin Cases, where the closest next of kin are cousins, involve the Public Administrator which is a government official charged with the responsibility of estate administration of estates where close relatives are not known to exist or no one steps forward to commence Surrogate's Court proceedings.

In many instances the search for heirs results in a sort of dead-end. An heir may be identified but his or her whereabouts is unknown despite a diligent effort to locate him or her. Sometimes, it may be impossible to completely close out the possibility of additional heirs and provide proof that no one else exists as a possible distributee. In these situations, New York Surrogate's Court Procedure Act Section 2225 provides a method by which after 3 years following the decedent's death the law will presume that an identified heir may be presumed deceased without issue and unknown heirs may be presumed not to exist. In order to utilize this Statute, diligent and exhaustive searches must be shown to the Court to have been completed.

I have represented numerous clients in kinship matters. Extensive family research is needed in these cases and all individuals who have had contact with the decedent and have knowledge concerning family relations must be interviewed to determine whether they can be helpful as witnesses for the Court proceedings. Witnesses, as well as genealogists, may need to give testimony. Modern technology is used by the Courts to allow videoconferencing. Thus, testimony by individuals from around the world can be obtained without having to make witnesses travel long distances. This technology provides greater resources to the Courts and the heirs attempting to show their diligent search efforts.

Continue reading "Kinship Proceedings In New York Require A Diligent Search for Heirs" »