A person who dies without a Last Will and Testament is said to have died intestate. According to Estates, Powers and Trusts Law (EPTL) Section 4-1.1, entitled “Descent and distribution of a decedent’s estate,” there is a statutory priority as to the identity of the individuals who are entitled to inherit a decedent’s estate. The statute provides, for example, that a surviving spouse is to receive $50,000.00 and one-half of the rest of the estate with the balance to be shared by the decedent’s issue (i.e., children and descendants).
In most cases, determining the identity and location of the next of kin or distributees, as referred to in the statutes, is not a problem. Not only do these individuals receive a share of the estate, they may be entitled to serve as the estate Administrator.
In addition, since such persons must be given notice of the Surrogate’s Court proceedings, the Court requires that they be fully identified in the Court filings. There are many circumstances that may be present when identifying a decedent’s next of kin which can delay and complicate estate settlement. Here are a few of the more common problems.
- Identifying family members – very often a decedent’s family is difficult to identify. This can result from decades of estrangement. Not only do next of kin lose contact with each other, they may live in entirely different states or countries and deaths and marriages over generations may go unreported throughout the entire family membership. I have seen numerous instances where a potential distributee may have been institutionalized or reside in a non-permanent housing situation creating an almost impossible task of locating such person. There are still other circumstances where the extent of the family is so enormous that it may take months or years to assemble the information needed to locate and identify all the parties. One of my Brooklyn estate cases resulted in an overseas investigation of a family from Ireland that resulted in over 250 pages of description by a genealogist and more than 100 documents such as birth, death and marriage records tying all the individuals together.
- Determining status – even when potential distributees are known and located, their actual status may be an issue. This is particularly so when dealing with non-marital children. Such children are not presumed to be a child of their father when born out of wedlock. When the decedent is an unmarried father, his alleged next of kin must demonstrate their right to inherit. EPTL section 4-1.2 is entitled “Inheritance by non-marital children.” The statute delineates the ways by which a non-marital child can show his right to inherit. The New York Probate Lawyer Blog has discussed this statute and intestate inheritance issues in numerous blog posts. One of the ways by which the statute allows inheritance is by demonstrating that the father “openly and notoriously acknowledged the child as his own.” Another possibility is to use a “blood genetic marker test” along with “other evidence” to demonstrate paternity.
As discussed, proving estate kinship rights in an intestate administration case in Surrogate’s Court can be complicated. Obtaining the services of an experienced estate litigation lawyer and a genealogist is recommended. Also, engaging in estate planning and creating a Last Will and possibility a Living Trust may avoid the uncertainties involved in administration proceedings.
I have represented clients in kinship and administration cases throughout New York City and the metropolitan area for decades. Call Me Now for a free confidential review of your estate case. We provide reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.