Articles Posted in Kinship

The identity of a decedent’s heirs at law are an essential element in all probate and intestate administration cases.   There have been numerous posts in the New York Probate Lawyer Blog that examine this issue.  When a Last Will is offered for probate, the person petitioning for the Will’s admission to probate must provide the Court with the names and addresses of the decedent’s distributees (i.e., next of kin).  Distributees require notice of the proceeding because they have a right to object to the Will.

A New York City Estate Attorney typically obtains kinship information from a person when they are preparing an estate plan and Last Will.    This information can sometimes  be invaluable when preparing the probate papers.  It is possible that there are no family members or friends who may have complete family tree information.  If the probate petitioner cannot provide the information on distributees a due diligent search must be made for the next of kin.  This search may require that services of professional investigators such as genealogists be obtained.   Also, the Court may require that a Court Citation be directed to all unknown distributees.  The Citation must be published in a local newspaper. Continue reading

Kinship disputes are very common in New York estate cases. When a person dies his estate typically can be settled in one of two ways. If the decedent left a Last Will, the Will is offered for probate in the Surrogate’s Court.

In the event the decedent dies intestate (without a Will) then a petition for Letters of Administration is presented to the Court. An Executor or Administrator is appointed depending upon the type of Court proceeding. Continue reading

fundamental aspect of estate cases in Surrogate’s Court is that all necessary persons be given proper notice of the proceedings. For the most part, individuals who are interested parties are the decedent’s next of kin or distributees.

Many posts in the New York Probate Lawyer Blog discuss the need to prove or demonstrate a person’s kinship to a decedent. In probate cases, the probate petition that is filed with the Court must list all of the decedent’s distributees. These persons must receive notice of the probate proceeding since they would have a right to Contest a Will if they felt that the probate was improper. Among the various grounds to contest a will are lack of due execution, lack of testamentary capacity and undue influence. Continue reading

Surrogate’s Court cases such as probate proceedings and intestate administration proceedings have many different requirements. However, one common necessity in all these matters is that the Court must be provided with complete information regarding a decedent’s next of kin (“distributees”). Full details regarding family members is necessary so that all persons who are interested in the estate can receive proper notice regarding the Court case.

In an intestate administration proceeding the decedent’s distributees are the person’s entitled to receive a share of the estate and also may be entitled to be appointed as the administrator. When there is a petition to probate a Last Will, the distributees must be listed so that they receive proper notice regarding the probate matter and can Contest the Will if they decided to do so. Continue reading

When a person dies without a Last Will he is said to have died intestate. As in all estate matters, a paramount issue is the determination of the decedent’s next of kin or distributees. The New York Probate Lawyer Blog has published many articles discussing the need to establish heirship. In many cases the Surrogate’s Court will require that there be a Kinship Hearing to legally determine the decedent’s closest living relatives. In an intestate estate the distributees get to receive a share of the estate. Estates Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, provides the priority of heirs who are to share in the estate.

An important issue that arises in kinship cases is that where a decedent was not married, and had non-marital children, there may be problems proving kinship for the unmarried father. EPTL 4-1.2 entitled “Inheritance by non-marital children” provides the requirements needed to demonstrate that a non-marital child is an heir of the deceased father. Continue reading

All Estate cases involve determining the next of kin of the decedent. In a probate proceeding where a person dies and leaves a Last Will, the estate rules and procedures mandate that the decedent’s distributees (next of kin) be provided with official notice of the case. New York Estate lawyers have experience in preparing the probate petition and affidavit of kinship that the Surrogate’s Court wants to review before admitting a Last Will to probate.

In many instances a decedent dies intestate meaning there is no Will. As discussed in earlier posts in the New York Probate Lawyer Blog, where a person dies intestate, his estate is distributed to his next of kin. However, proving a person’s kinship presents many problems. Quite often a decedent is not survived by a close relative such as a spouse or child or even a sibling or niece or nephew. It may turn out that a decedent’s closest relative is a cousin. Kinship proceedings or kinship hearings are very common in what are known as cousin cases. Continue reading

Estate attorneys in New York are familiar with statutes that provide for the distribution of estate assets to a person’s next of kin. These persons are known as distributees.  Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides the order of priority to the individuals who may assert inheritance rights.

As discussed in earlier posts in the New York Probate Lawyer Blog, kinship issues can arise in both probate and intestate administration proceedings in the Surrogate’s Court. However, proof of kinship is more commonly an issue where there is no Last Will and potential distributees are asserting rights to inherit the assets of the decedent’s intestate estate. Continue reading

The New York Probate Lawyer Blog has provided a number of posts concerning the rights of a person’s next of kin to inherit or have an interest in an estate. New York Estate Attorneys are aware that local statutes provide protections and rights to a decedent’s surviving spouse. For example, pursuant to Estates, Powers and Trusts Law (“EPTL”) Section 4-1.1 a surviving spouse can claim the amount of $50,000 plus one-half of an estate if there are also surviving issue. Additionally, under EPTL 5-1.1-A a spouse who is disinherited under a Will can claim a spousal share of generally one-third of the estate.

While in most instances there is no dispute as to whether a certain individual is actually the spouse of a decedent, there are many cases where the legal status of a spouse is called into question. When spousal rights are disputed, there is typically estate litigation to determine what rights, if any, a person claiming to be a spouse may be entitled to. A couple of recent cases demonstrate issues that a Court may be called upon to resolve. Continue reading

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.

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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.

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