Intestate Estate

December 19, 2012

New York Inheritance Laws Do Not Protect Step-Children

The various rights afforded to persons by the New York estate laws generally require that a person be related by blood to a decedent. New York Estates, Powers and Trusts Law (EPTL) Section 4-1.1 provides the relationship of individuals who can inherit an estate of a decedent who died without a Last Will. The priority established in this statute begins with a surviving spouse and issue and continues through the family tree to great-grandchildren of grandparents. Section (b) of the law provides that the “decedent’s relatives of the half blood shall be treated as if they were relatives of the whole blood.” Thus, half sisters and half brothers, for example, achieve inheritance rights. The statute further recognizes rights of adopted persons. Such familial relationships also afford a person certain rights to contest a Last Will.

However, absent an adoption, a child of a natural parent who has remarried has no rights with regard to the estate of the step-parent. This situation can present many problems, particularly in the case where the child is young. For example, if the child’s natural parent dies, the deceased parent’s estate or a large portion of it may pass to the surviving spouse if there is no Last Will or the Last Will does not provide for the child. Once the surviving spouse has received the estate property, the surviving child has no rights or expectation regarding the estate of the step-parent since there is no blood-relation between them. If the step-parent dies without a Last Will all of the step-parent’s estate, which includes the assets derived from the step-child’s deceased natural parent, may go to the step-parent’s blood relatives. Unfortunately, the step-child would be excluded under the law from participating as a distributee or next of kin of the step-parent.

This problem was recently recognized in Australia where laws have been changed to protect the interests of step-children. An article by Amanda Banks appearing in the West Australian dated December 3, 2012, entitled “Stepchildren get will rights” discusses this topic.

The best remedy for disinheritance of a step-child is for the child’s natural parent to prepare a comprehensive estate plan which includes a Last Will, Living Will, Health Care Proxy and even a Living Trust. The provisions of these documents can provide for estate assets to go to a child and also that the child be appointed as an Executor or Health Care Agent. If the child is a minor, a trust can be created with an independent trustee to protect the property that is given to the child. While disinheriting a child is allowed under New York, the unintended disinheritance of a child in a second marriage situation can have devastating life-long financial consequences.

Many individuals believe that estate planning is only for those that are wealthy and want to limit estate tax liability. In fact, there are many family situations where there are second marriages, adopted children, unknown heirs or other family concerns unassociated with tax issues which require extensive estate planning and foresight.

September 27, 2012

New York Distributees Must Be Determined For Estate Settlement

by Jules M. Haas

Proceedings in the New York Surrogate’s Court, like most Court matters, require that all of the interested parties be given proper notice of the Court action.

In addition to the fundamental fairness that results from proper notice, the Court’s ultimate rulings and Orders generally can have no effect over persons who were not made parties to the proceeding.

The Surrogate’s Court can hear many different types of cases. The most common of these matters is the Probate of a Will or the Intestate Administration of a decedent’s estate. In Probate and Administration proceedings it is mandated that the Court be advised as to identity and location of the decedent’s distributees or next of kin. This information is provided to the Court in the Probate Petition or Petition for Letters of Administration. In most instances distributees are easy to determine since the decedent is survived by a spouse and/or children. However, there are many situations where the closest living relative may be a distant cousin and members of this class of relatives may have had no contact with the decedent for years or decades.

Additionally, locating cousins requires finding relatives that are descendents of the decedent’s grandparents on both the maternal and paternal sides of the family. It is common that when distributees are distant cousins the estate will have to be administered by a public official called a Public Administrator. When the Public Administrator completes the estate administration or estate settlement, an Accounting Proceeding is filed with the Court. It is at this point that the persons claiming to be distributees, such as the cousins, must prove their status in a Kinship Hearing.

When a client confers with me about an estate plan or preparing a Last Will, one of the important items of information I ask for is a family tree or kinship data. Based upon the information provided, a person’s estate plan can be structured by the use of a Living Trust or other plan to avoid post-death complications where kinship data is missing or hard to obtain. It is always a benefit to confer with a qualified New York Estate and Trust lawyer to discuss issues regarding beneficiary designations and planning strategies.

The final estate administration and intentions of a person can be disrupted where Court proceedings are complicated or delayed because all of the parties that need to be notified cannot be determined or located.

Determining the identity of a person’s next of kin can sometimes even involve the use of genetic or DNA testing. A recent article in Arts Beat on September 25, 2012 by Dave Itzkoff reported that a judge had recently ordered DNA testing for a man who claimed to be the brother of Sherman Hemsley, who had starred in the “Jefferson’s” television sitcom.

DNA testing is also authorized under Estates, Powers and Trusts Law Section 4-1.2 where a person claims to be the heir of a father who was not married to his mother. Needless to say, the determination of a person’s next of kin and the protection of the rights of estate beneficiaries can be very complex and consultation with experienced estate attorneys and even a genealogist is highly recommended.

May 9, 2012

Intestate New York Estates Can Cause Problems

by Jules M. Haas

The New York Probate Lawyer Blog has discussed many issues that arise in connection with intestacy. When a person is said to have died intestate it means that his or her estate is to be distributed without the benefit of a Last Will. The relevant local laws of intestacy determine which persons (i.e., next of kin) are to inherit the decedent’s estate.

An intestate estate can arise when a person does not execute a Last Will prior to death. It can also occur when a person purportedly signs a Will but the Will is lost or there is a Will Contest litigation and the document is not admitted to probate.

The recent untimely death of Amy Winehouse is a typical example of someone who did not prepare a Last Will. When there is no Will, the intestacy laws of a person’s domicile or primary home determine who is to inherit. In Ms. Winehouse’s case, the laws of Great Britain provided that her parents were to inherit her estate. Ms. Winehouse was not married and had no children at the time of her death.

Without having a Last Will, a person cannot control who is to inherit estate assets. Although creating joint accounts and naming beneficiaries for retirement funds, life insurance and other assets can help avoid the effect of intestacy laws, any assets held by a decedent in his or her own name alone are subject to the statutes. Unfortunately, the beneficiaries selected by the controlling laws may not be the persons the decedent wanted to receive their estate.

Not only do intestacy laws dictate who is to receive estate assets, the decedent is forced to forego any possibility of estate planning for tax savings. Ms. Winehouse’s estate value was in excess of $6 million and may have benefited from estate planning. Without pre-planning by a Last Will or Trust documents valuable credits for estate tax protection may be lost that can benefit younger generations. Additionally, a person who does not have a Last Will cannot select Executors, Trustees and Guardians. Once again, the local laws governing intestacy determine the persons who can hold estate positions such as an Estate Administrator.

Preparing a Last Will and other estate planning papers such as a Living Will and Health Care Proxy are important. Statutes controlling intestate estates should be avoided along with their unintended results.

February 1, 2012

New York Non-Marital Children Can Inherit From Their Father

by Jules M. Haas

A New York estate proceeding in the Surrogate’s Court requires the participation of all interested parties. First and foremost, a decedent’s distributees (next of kin) must be identified so that proper notice, usually in the form of a Citation or Notice, can be sent to the parties at their current address. A due diligence search must be made to determine both the identity and address of all distributees. Both Probate and Intestate Administration proceedings require that these parties be included in the case. Failure to properly include necessary parties in Estate proceedings, particularly where estate litigation is involved, can create a defect whereby the Court’s final determination may be subject to being found void.

The New York Probate Lawyer Blog has previously discussed issues involved where a decedent-father had children but was not married to the child’s mother at the time the child was born. These non-marital children – distributees – usually face an uphill battle to show that they are, in fact, children of the decedent, and that they are entitled to a share of the decedent’s estate or other rights they are given as distributees in the Court process.

New York Estates, Powers and Trusts Law Section 4-1.2 entitled “Inheritance by non-marital children”, sets forth the grounds and manner by which a non-marital child can demonstrate his or her relationship. The statute provides that a non-marital child “is the legitimate child of his mother.” However, with respect to his father, unless there is some Court Order or official determination of paternity, the most common avenue to prove kinship is to follow the statutory direction and provide “clear and convincing evidence” that “the father openly and notoriously acknowledged the child as his own.” The statute also provides for proof by “genetic marker testing.”

I have represented individuals who sought to inherit an estate where it was necessary to present evidence to the Court that satisfied EPTL 4-1.2. A hearing is commonly held by the Surrogate or a Court referee and documents and witnesses are presented to satisfy the legal requirements of open and notorious acknowledgement.

In a recent case decided by Westchester Surrogate Anthony A Scarpino on January 19, 2012 and reported in the New York Law Journal on January 27, 2012 entitled, Matter of the Estate of Michael Konstantin, issues regarding proper notice of Surrogate’s Court proceedings and proof of kinship of a non-marital child converged. In Konstantine, a proceeding was commenced by a non-marital child to vacate the probate of the decedent’s Last Will and the distribution of millions of dollars of wrongful death proceeds on the ground that the non-marital child was not included as a party to the prior proceedings and was entitled to receive a share of the proceeds. Based upon the evidence presented to the Court, the Surrogate found that the child presented some evidence that “the decedent openly and notoriously acknowledged the non-marital child as his own” and also showed that genetic marker testing was a proper method of discovery. Therefore, the Court directed that the decedent’s other children submit to genetic marker testing which has a high probability of showing whether the non-marital child had a common father.

Surrogate’s Court cases require the assistance of experienced estate attorneys who are familiar with the rules and procedures of estate settlement to protect the interest of the parties interested in a decedent’s estate.

December 21, 2011

New York Distributees May Be Adopted Persons and Interested in a Decedent’s Estate

by Jules M. Haas

The New York Probate of a Last Will and an administration proceeding for an intestate (no Will) estate each requires compliance with provisions in the New York Estates Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA).

Among the most fundamental provisions of these statutes is the requirement that parties who have an interest in the proceedings receive proper notice so that they can appear in Court and protect their rights. In this regard, it is not always easy to determine or to locate all the parties whose interests must be disclosed to Court so that proper notice is provided to them.

For example, in both probate and intestate administration proceedings, all of the decedent’s distributees must be determined and located so that notice, usually in the form of a Citation, can be sent to them. A Citation is a paper issued by the Surrogate’s Court in New York, whether in Nassau County or Brooklyn or otherwise, in which the Court designates a date for the case to appear on the Court calendar and advises the party receiving the Citation to appear on such date in connection with the particular relief that is to be presented (i.e., probate of the Will).

The New York Probate Lawyer Blog has previously discussed some of the many issues that arise in determining interested parties such as questions regarding Kinship and problems faced by persons whose father was not married to their mother at the time of birth.

In a recent case entitled Matter of Cutler, which was decided on October 31, 2011 and reported in the New York Law Journal on November 14, 2011, Surrogate Edward W. McCarthy III (Nassau County) was presented with an issue concerning a biological child of the decedent. It appears that the child had been adopted by a stepfather after the decedent and the child’s mother were divorced. In connection with the probate of the decedent-father’s Last Will, the proposed Executor asked the Court to unseal the child’s adoption records so that the child could be located and given notice of the probate proceeding. As explained by the Court, notwithstanding the adoption of the child by the stepfather, New York Domestic Relations Law Section 117(1) provided that the adoption by the stepfather did not eliminate the child’s interest as a distributee of the child’s deceased parent. Therefore, the child remained a distributee of her father pursuant to EPTL 4-1.1 and was entitled to notice in the probate proceeding.

The Court allowed the unsealing of the records but appointed a Guardian ad Litem to supervise the process to protect the privacy of the adoption process.

As can be seen from Cutler the assistance of a Nassau Probate Lawyer was needed to advise the nominated executor with regard to probating the decedent’s Last Will. I have represented many individuals in probate and intestate administration proceedings regarding the identification and location of all parties who must receive notice and providing the Court with the information necessary to complete these cases. Estate settlement and administration often necessitates a full review of a decedent’s family history which requires extensive research. While thoughtful estate planning through the use of a Last Will and Living Trust may avoid some of these post-death problems, it is more often the case that such planning has not been done and estate administration is delayed and complicated while a search for interested parties is performed.

August 12, 2011

New York Executors Have Fiduciary Responsibilities and Are Subject to Court Review

by Jules M. Haas

The New York estate settlement process involves many different requirements and responsibilities. An Executor is the person or institution appointed by the Surrogate’s Court to administer or carry out the terms or provisions in a Last Will. The responsibilities of a person named as Executor begins immediately after the death of the decedent.

An Executor’s first duty is to file the Will with the Court and prepare a petition for probate. The Court must officially appoint the Executor before he or she has authority to handle estate affairs. While information provided in the probate petition is the same whether filed in Nassau, Suffolk or Queens counties, it may not always be easy to provide the required data. Among the items needed to be completed is a list of the names and addresses of all of the decedent’s distributees (i.e., next of kin). While this may be a simple task where a decedent is survived by a spouse and/or children, the information may not be so easy to provide where the decedent’s closest relatives are cousins and spread out throughout many different countries.

In a number of estates where I represented the Executor, distributees numbered in the twenties and many lived overseas. Also, particular problems arise when the decedent was orphaned or estranged from his or her family at a young age.

The named Executor is often faced with kinship issues such as these. Also, the potential for a Will Contest always exists. Thus, the Executor’s obligations can be quite extensive and complex even before the actual administration of the estate begins.

Once the Executor is actually appointed by the Court, it is his or her job to collect the decedent’s assets; pay bills, taxes and claims; and distribute the estate assets to the estate beneficiaries. In some instances, the Will may name more than one person as Executor and disputes may arise between the Executors. In a recent case decided by Surrogate Edward W. McCarty on June 2, 2011 and reported in the New York Law Journal on June 20, 2011, one of the Executors interfered with the sale of the decedent’s
residence. This conduct prompted the other Executor to commence a Court proceeding pursuant to Surrogate’s Court Procedure Action section 719 for removal of the Executor.

Even routine matters may pose extraordinary problems. As noted above, one duty of an Executor as a fiduciary is to determine and satisfy a decedent’s debts or the claims against the estate. An Executor who improperly performs this task may end up personally responsible for payment. However, determining the extent and validity of a claim or debt can be difficult. As reported by Letitia Stein on July 27, 2011 in the St. Petersburg Times, a lawsuit was filed against the estate of a woman by a hospital which claimed the deceased woman incurred over 9 million dollars in medical expenses prior to her death.

Determining and paying estate taxes or estate income taxes is also a complex matter. Just this past year Executors and other fiduciaries were required to examine the new tax laws very closely to determine whether an option concerning the cost basis of estate assets or utilizing an increased estate tax exemption would be most beneficial.

Distributing estate assets to beneficiaries can also have many problems. Quite often, beneficiaries are minors and payment must be made to a Trust or to a Guardian appointed by the Court. Also, beneficiaries may not agree with the calculations utilized in computing their shares or may object to some action taken or not taken by the Executor. A contested accounting proceeding may result from these disputes. Additionally, a beneficiary may die before receiving his or her distribution and a proper estate fiduciary must be appointed for the beneficiary’s estate before his or her share can be paid out.

The many responsibilities and issues faced by Executors and other estate fiduciaries in administering an estate are endless. Having an experienced estate settlement attorney is important to advise the fiduciary concerning these matters in estate administration

May 17, 2011

New York Kinship Problems Arise When A Decedent Does Not Have A Last Will and Testament

by Jules M. Haas

The New York Probate Lawyer Blog has discussed on a number of occasions the many problems created when a person dies without a Last Will and Testament. One of the major issues faced in estate settlement and estate administration in such cases is determining the identity of the decedent’s distributees or next of kin. This determination is essential because the distributees are the individuals designated by law that will inherit the estate assets. As previously referred to in blog posts, New York Estates, Powers and Trusts Law section 4-1.1 provides a list of persons who have priority of inheritance.

It is quite common that a kinship hearing is required to determine the identity of distributees. Proof of kinship can be time-consuming, expensive and difficult. A recent example of the complexities of kinship determination was displayed in Matter of the Estate of Esther Onetha Springer, decided by Kings County Surrogate Margarita Lopez Torres on April 8, 2011. Esther Springer died in 1988 owning a one-half interest in her residence. Based upon investigation followed by testimony and other proof at Court hearings, it appeared that Esther had two children. One of those children, Clyde, had moved to California and died in 2001. Therefore, a determination needed to be made as to Clyde’s distributees. According to the Court decision, Clyde “had fathered a number of children from a number of relationships, marital and non-marital. . . .” It appears that Clyde had eight children and the New York Surrogate determined that it was necessary to use California law to establish Clyde’s distributees. The Court was ultimately able to determine kinship.

I have assisted clients throughout New York including Manhattan and Queens in kinship and intestate administration matters. As can be seen from the Esther decision, it is essential to prepare appropriate estate planning documents such as a Living Trust and Last Will and Testament to avoid the uncertainties of intestate proceedings. Additionally, in the event a person dies without proper planning, a good New York Trust and Estate attorney is important to help protect the rights of estate beneficiaries and to properly administer the decedent’s estate.

April 15, 2011

Joint Tenancy an Option for Disposing of Real Estate without Probate

by Jules M. Haas

We recently reported on our New York Probate Lawyer Blog about the need for ancillary estates to dispose of out-of-state real estate in cases that go through probate court.

Estate planning lawyers in New York City understand there are many options for avoiding probate. In some cases trusts or other options can be a desirable alternative. As part of our ongoing series on Avoiding Probate in New York, we will take a look at the options to transfer real estate.In general, those estates governed by a Last Will (or Intestate estates without a Will) will enter the probate court process. Probate court is a state process however, and as such it typically will not dispose of real estate or other hard assets owned in another state. It can be necessary to enter the probate process in that state as well, unless you own those assets in trust or other arrangements for avoiding probate have been made.

Some states allow automatic transfer of ownership of the property to your chosen heir. You may hold the property in joint ownership. Joint tenancy with right of survivorship will permit your spouse (or chosen heir) to assume ownership and continue living in the house after your passing.

Probate is not avoided if both owners die at the same time and the last surviving owner must make other arrangements to dispose of the property. In some cases, naming a joint tenancy may also trigger gift taxes. And it can create several headaches that can make it a poor choice for an older person who is seeking to transfer ownership after his or passing.

Joint tenancy involving other assets, such as bank accounts, can also create disputes after your death. In cases, for example, where joint tenancy on a bank account is granted to assist with bills, the person may claim those funds automatically, which may not be in keeping with the original intent of the account owner.

Consulting an estate planning lawyer in New York is the best way to make sure your affairs are in order and that your estate passes to your chosen heirs in the manner of your choosing.

April 6, 2011

New York Probate Procedure Is Affected By Recognition of Same-Sex Marriage

by Jules M. Haas

The New York Probate Blog has discussed on many occasions the probate procedure in New York. Probate is the legal process by which a Will is validated by the Surrogate’s Court. The procedure to probate a Will encompasses many facets. Initially, a Probate Petition is prepared and filed with the Court.

The Probate Petition contains basic information regarding the petitioner who is usually the proposed Executor. The Petition is usually prepared with the guidance of an experienced New York Trusts and Estate attorney. Details regarding the decedent, the date of the purported Last Will, the names of the attesting witnesses to the Will and the estimated value of the probate estate are also included. An essential section of the petition requires that the names and addresses of the decedent’s distributees, or next of kin, be provided. The reason for requiring this data is because the distributees have a right to receive official notice of the probate proceeding since they have an interest in contesting the Will. In the event the decedent died without a Will or the purported Last Will is deemed to be invalid, the distributees would inherit the estate according to the laws of intestacy. Therefore, a proper kinship determination is essential to the probate process.

In a recent New York decision, H. Kenneth Ranftle v. Craig Leiby, the New York Appellate Division, First Department, decided on February 25, 2011, that a same-sex Canadian marriage between the decedent and his partner would be recognized by the New York Court. Thus, in this Manhattan Probate case, the decedent’s sole distributee was determined by the Court to be his same-sex “spouse”. The decedent’s siblings were found not to be distributees since the New York Statute, EPTL 4-1.1, gives priority to a spouse. The siblings were precluded from challenging the decedent’s Will.

I have helped many clients prepare probate petitions. Obtaining information regarding distributees and giving them the proper Court mandated notice is a paramount objective. The accurate completion of the probate petition greatly helps speed up a successful Will probate.

March 31, 2011

New York Kinship Cases Require Proof To Claim An Inheritance

by Jules M. Haas

The New York Probate Lawyer Blog has discussed the difference between probate proceedings where a decedent has prepared a Last Will and Administration proceedings where a decedent dies without a Last Will or intestate. Whether or not a person has prepared a Will, it is necessary for purposes of the Surrogate’s Court proceedings to determine the decedent’s next of kin or “distributees.”

Distributees are the decedent’s closest surviving relatives who would inherit his or her estate pursuant to the New York laws of intestacy. When a person dies without a Will, it may be easy to determine his or her distributees if there is a surviving spouse or children. However, when a decedent’s closest surviving relatives are cousins or more distant relations, the Court will require that proof of kinship be presented. Kinship proof requires a very detailed and verifiable presentation of a decedent’s heirship history or family tree on both the maternal and paternal side of the decedent’s family. Such proof can include Court testimony from witnesses personally knowledgeable with the decedent and his or her relatives, and the submission to the Court of documents such as death certificates, birth certificates, marriage certificates, obituary notices in newspapers, government census records, cemetery records, probate court records, church and other religious ceremony papers and military records. The types of documentation that may be useful in proving kinship is endless as long it tends to show a connection between the decedent and his or her heirs.

Obtaining the testimony and documents necessary for a kinship hearing in Surrogate’s Court may be complicated if the witnesses or papers are located in countries outside of the United States. It is a common practice in these cases to hire the services of a professional genealogist to assist with the determination of a family tree and locating the necessary proof.

I have helped many clients prove kinship in both probate and intestate administration proceedings. An experienced New York Probate Lawyer can help estate beneficiaries protect their interests in estates where kinship must be proved.