In a kinship proceeding, the cousins really have to not only prove who they are, they have to prove the non-existence of prior classes (spouse, children, siblings, etc). The level of proof is high, and the money is not going to be released if its not proven.
A related situation happens when such a person makes a will. For a will to be probated in New York, you must prove to the court that all persons "adversely affected" by the will have been notified. These are the people who would inherit under intestacy. Proof of their notification is shown by their signing a waiver, or by their being served with a Citation. What happens if the decedent made a will, and the distributees are cousins? Do you have to go through a "kinship proceeding", just to figure out who to put on notice for the will? The short answer is NO, you have to show "due diligence", both in searching for these people, and in notifying them. If you have looked for such relatives and can't find them, the court may let you serve them by "publication". That's what those little notices in the newspaper are. Those notices happen after a diligent search has been shown, and the court has authorized service on these people by publication. The notices are basically saying to these people....."Hey, the Will of Joe Blow, your uncle, is being offered for probate on July 15th, show up or forever hold your peace. It's rare that anyone responds to these, though it has happened. How much diligence is "due" diligence? I have found the courts to be practical about this. If the Estate is very large, they expect more diligence. They may require a professional investigation. On a smaller estate, they will sometimes permit the attorneys to show a search using available public records, including the internet.
In the overall scheme of things, a due diligence search in the course of probating a will is a much better situation than laughing heirs and a kinship proceeding. Better for whom, you may ask. Better for the cosmic karma of the universe, something I find myself noticing more as I get older.
Showing posts with label Why of Wills. Show all posts
Showing posts with label Why of Wills. Show all posts
Friday, May 25, 2007
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.
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.
Sunday, May 20, 2007
The Why of Wills 2 (Avoiding Laughing Heirs)
This is part 2 of "The Why of Wills".....
In New York, here's what happens when a person with no "close" family (no spouse, kids, parents, siblings, nieces or nephews) dies without a Will. The Public Administrator of the County where the person dies, begins to administer the Estate. The Public Administrator is a public official who steps into estate cases when there is nobody else available to act. In a County like Queens, with 2 million people, it happens quite often. They have a good sized staff, and a highly skilled law firm to represent them.
When it appears that a person has died without a Will, or if there is a Will but nobody is acting, the Public Administrator begins to administer the Estate. They do anything and everything that an Executor or close family member would do. They sometimes arrange burial, they clean out apartments and houses, they try to figure out who the closest living relatives are, they search for a Will, they receive mail, they sell houses or apartments, they marshal the accounts and assets of the decedent, they deal with claims of creditors, and anything else that may be needed.
When they reach the point where an Estate Administrator would ordinarily pay the money to the heirs, the Public Administrator will then file an "Accounting Proceeding". This is a proceeding where they set forth everything they have done, lay out all the money taken in and paid out, and ask the Court to set an attorneys fee for their attorneys, and approve the way they have handled the money and the claims. They notify all interested parties, and when the accounting proceeding is heard in Court, any disputes are resolved. The final thing the proceeding requests is the remaining money to be held by the City of New York, pending the establishment of "kinship".
A "Kinship Proceeding" should then follow. This is when the cousins have to prove who they are, and thereby claim and ultimately receive the money. This can be rather involved, and very interesting, depending on your perspective.
As a lawyer, I find these interesting. They are a lot of work, the kind of work we are well paid for. For the people who die and create these cases, or for the friends or family who WOULD have been included IF the decedent had made a Will, these laughing heir cases are often gut wrenching. The thing is, they can be simply avoided......a person whose closest family is cousins SHOULD make a will.
More on Kinship Proceedings in the next post.....
In New York, here's what happens when a person with no "close" family (no spouse, kids, parents, siblings, nieces or nephews) dies without a Will. The Public Administrator of the County where the person dies, begins to administer the Estate. The Public Administrator is a public official who steps into estate cases when there is nobody else available to act. In a County like Queens, with 2 million people, it happens quite often. They have a good sized staff, and a highly skilled law firm to represent them.
When it appears that a person has died without a Will, or if there is a Will but nobody is acting, the Public Administrator begins to administer the Estate. They do anything and everything that an Executor or close family member would do. They sometimes arrange burial, they clean out apartments and houses, they try to figure out who the closest living relatives are, they search for a Will, they receive mail, they sell houses or apartments, they marshal the accounts and assets of the decedent, they deal with claims of creditors, and anything else that may be needed.
When they reach the point where an Estate Administrator would ordinarily pay the money to the heirs, the Public Administrator will then file an "Accounting Proceeding". This is a proceeding where they set forth everything they have done, lay out all the money taken in and paid out, and ask the Court to set an attorneys fee for their attorneys, and approve the way they have handled the money and the claims. They notify all interested parties, and when the accounting proceeding is heard in Court, any disputes are resolved. The final thing the proceeding requests is the remaining money to be held by the City of New York, pending the establishment of "kinship".
A "Kinship Proceeding" should then follow. This is when the cousins have to prove who they are, and thereby claim and ultimately receive the money. This can be rather involved, and very interesting, depending on your perspective.
As a lawyer, I find these interesting. They are a lot of work, the kind of work we are well paid for. For the people who die and create these cases, or for the friends or family who WOULD have been included IF the decedent had made a Will, these laughing heir cases are often gut wrenching. The thing is, they can be simply avoided......a person whose closest family is cousins SHOULD make a will.
More on Kinship Proceedings in the next post.....
Friday, May 11, 2007
The Why of Wills
WHO SHOULD MAKE A WILL AND WHY DON’T THEY?
WHY….do people who have no close family, and who think their distant relatives “don’t care about them”, frequently neglect to make a will, die with a lot of money, so these same distant relatives inherit their money?
WHY…..don’t people who have “nobody to leave my money to” make bequests to charity?
WHY…..do some people have a pathological abhorrence to paying attorneys fees, and accept heavy financial consequences when an ounce of prevention would have led to a better result?
WHY…..do people hold family grudges for years and never make the first move towards resolving the issues?
I know, I ask these sarcastic “why” questions. The kind of questions we could probably answer, but what would it accomplish?
What happens when a person dies without a Will? Contrary to popular misconception, their assets do NOT “go to the State”. When there is no will, and a person dies, the laws of intestacy apply. All States have such laws, essentially a logical order with the closest relatives inheriting. In New York, it goes like this:
- if a spouse and no children, all to the spouse
- if children and no spouse, all to the children
- if spouse and children, first $50,000 to the spouse, then 50/50 spouse/children
- if no spouse or children, all to the parent(s)
- if no parents, all to siblings (or children of predeceased siblings)
- if no siblings or nieces/nephews, you start getting to aunts/uncles and cousins.
The above is a rough sketch, and there are rules to cover EVERY situation you could think of, and they ALL come up. It is almost impossible for there not to be at least SOME cousins. It is actually fairly common to have an older person who never married or had children, whose parents are long gone, and who either had no siblings, or outlived them all. If a person like this does not make a will, their cousins inherit!!! In law school the professors refer to this as “laughing heirs”. Everyone laughs about this in law school, and probably thinks it some obscure situation that never happens in real life.
Experience teaches otherwise…..
More tomorrow….
WHY….do people who have no close family, and who think their distant relatives “don’t care about them”, frequently neglect to make a will, die with a lot of money, so these same distant relatives inherit their money?
WHY…..don’t people who have “nobody to leave my money to” make bequests to charity?
WHY…..do some people have a pathological abhorrence to paying attorneys fees, and accept heavy financial consequences when an ounce of prevention would have led to a better result?
WHY…..do people hold family grudges for years and never make the first move towards resolving the issues?
I know, I ask these sarcastic “why” questions. The kind of questions we could probably answer, but what would it accomplish?
What happens when a person dies without a Will? Contrary to popular misconception, their assets do NOT “go to the State”. When there is no will, and a person dies, the laws of intestacy apply. All States have such laws, essentially a logical order with the closest relatives inheriting. In New York, it goes like this:
- if a spouse and no children, all to the spouse
- if children and no spouse, all to the children
- if spouse and children, first $50,000 to the spouse, then 50/50 spouse/children
- if no spouse or children, all to the parent(s)
- if no parents, all to siblings (or children of predeceased siblings)
- if no siblings or nieces/nephews, you start getting to aunts/uncles and cousins.
The above is a rough sketch, and there are rules to cover EVERY situation you could think of, and they ALL come up. It is almost impossible for there not to be at least SOME cousins. It is actually fairly common to have an older person who never married or had children, whose parents are long gone, and who either had no siblings, or outlived them all. If a person like this does not make a will, their cousins inherit!!! In law school the professors refer to this as “laughing heirs”. Everyone laughs about this in law school, and probably thinks it some obscure situation that never happens in real life.
Experience teaches otherwise…..
More tomorrow….
Subscribe to:
Posts (Atom)