Tuesday, May 22, 2007

The Why of Wills 3 (Kinship Proceedings)

This is part 3 of the things that happen when people who should have made a will, don't. I am talking here about the loners, spinsters, black sheep, oddballs, singletons, dancers to their own drum, keep their own counsel......people who die not only without a Will, but without close family members to inherit from them.

There is nothing wrong per se with being single and without children. Very often such people have close relationships with siblings, nieces and nephews. If they don't make a will, these relatives will inherit, and it seems just and proper.

Very often such people accumulate a lot of assets, and their closest relatives are cousins, sometimes lots and lots of cousins, scattered around the globe. If this person dies without a Will, and the Public Administrator administers the Estate up to the point of a kinship proceeding (see previous post), what happens in a kinship proceeding?

Simply put, the Estate is divided into two halves, for the decedents paternal and maternal sides, and the cousins on each side have to PROVE their respective interests. Of course, before they even get to prove who they ARE, they have to prove the non-existence of those relatives who would inherit ahead of them. Cousins have to prove that there is no spouse, no children or grandchildren, no parents, no siblings, no nieces or nephews. Proving a negative can be challenging.

In these proceedings we generally prove things by locating and producing certified documents. Things like birth certificates, death certificates, marriage and divorce papers, estate records, and some more obscure ones like obituaries and census records. The non-existence of spouse and "issue" (lawyer word for children or offspring) is usually proven through testimony of a non-interested witness. It can be challenging to find a person who knows enough about the decedent to testify that they knew the person well enough to say they were not married and never had children. There is a certain leniency with this kind of testimony, since one would think that if there WERE spouse and issue, they'd likely come forward.

Once spouse and issue are accounted for, cousins generally must use a geneologist to set forth a family tree, and obtain the appropriate documents as proof. These trees typically contain information about pre-deceased siblings and their issue, parents and grandparents, and aunts and uncles. The tree often contains many of these people, but they have predeceased the decedent. When the lawyers and court participants in these proceedings are referring to the proofs regarding these persons, we talk about "killing them off". Nothing personal, but as long as they existed and we can't prove their death, they'd inherit ahead of cousins, and so we try to kill them off.....by proving that they are dead.

These proceedings are designed to protect the interests of people who may have had inheritance rights. The last thing the court system wants to allow is for someone to show up later, after the money is distributed. This thought underlies many things that go on in Surrogates Courts.

Next post....even MORE on kinship proceedings.


Anonymous said...

this is getting boring. could you write about something juicy and gossipy today....?

nylaw2law said...

well, after I finish with the Why of Wills 4 (which people are clamoring for), I will work on a different topic. Not sure if it will be juicy and gossipy....I was actually thinking of posting chapter 1 of a children's story called "The Adventures of Matt Weiner & Dovie". You may find this more to your liking than The Why of Wills.