The determination of kinship is important for all New York estate matters. The New York Probate Lawyer Blog has had many posts discussing this issue.
Firstly, an Estate Planning Lawyer typically asks a client to provide information regarding next of kin. This information serves many useful purposes. It can indicate whether a person’s estate might be the subject of a Will Contest or Will Dispute if a testator is leaving a large portion of an estate to individuals who are not close relatives. If this is the case, the estate planning attorney may suggest alternative methods of asset distribution such as lifetime gifts or a living trust. These vehicles would avoid the probate and Surrogate’s Court process which provides next of kin (i.e. “distributees”), with an automatic right to contest a person’s Last Will.
Kinship information is important when a Last Will is to be filed for probate. An Estate Lawyer needs to prepare a Probate Petition that includes all information such as names and address of a decedent’s distributees. These distributees are then provided with a notice issued by the Court called a Citation as to the probate proceedings.
When a person dies without a Will, the estate is subject to intestate administration. The estate beneficiaries are the persons determined under the New York statutes. Estates, Powers and Trusts Law Section (“EPTL”) 4-1.1 provides for the priority of the heirs entitled to inherit.
In many cases, the next of kin of a decedent are unknown or are distant in relation such as cousins. It may be that the county Public Administrator is needed to administer such estates and that a Kinship Hearing is required by the Surrogate’s Court to establish the identity of the persons entitled to the inheritance. As can be seen, it is important to have complete information regarding kinship for effective estate planning and estate administration. Although a person may prepare a Last Will leaving his or her assets to a close friend or other non-heir beneficiary, the probate of the Will may be delayed and unduly costly due to the search for decedent’s heirs who were not identified or considered when the estate plan was created. Of course, when a person does not prepare a Last Will, the likelihood of complications regarding the determination and proof of kinship increases dramatically.
A recent Ohio case, although not directly involving a kinship estate problem, points to the issues faced when a person needs to show familial relationships such as the whereabouts or status of a potential heir. As reported by Ryan Dunn in The Courier.com dated October 8, 2013, a fellow named Eugene Miller was declared legally dead by the Hancock County Probate Court in 1994, which was eight years after he disappeared. Mr. Miller recently reappeared and claimed to have just “took off” due to alcoholism and loss of his job. He then petitioned the Court to reverse its ruling that he was dead. The Court, however, refused to reverse its ruling because the three (3) year limit to change the ruling had passed. Mr. Miller was told by the Court that he was still considered to be legally dead.
While Mr. Miller’s predicament seems somewhat unique, it points to the uncertainties and difficulties that can be presented when attempting to show kinship and proving that an ancestor is deceased or that he was not survived by any living issue. EPTL Section 2-1.7 entitled “Presumption of Death From Absense; effect of exposure to specific peril” provides a procedure to have an absentee declared to be dead. Also, New York Surrogate’s Court Procedure Act 2225 entitled “Determination of distributees, devisees, legatees, beneficiaries and distributive and beneficial shares” provides a procedure to have a possible estate beneficiary declared presumatively deceased.
The estate planning and administration process is quite complex and the need to understand and determine kinship is essential.