New York Probate Lawyer Blog
When a person dies without a Last Will and Testament he is said have died intestate. Since there is no Will which provides for distribution of the estate assets, the decedent’s estate is distributed according to the intestacy laws. Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, provides the list of priority of persons who have a right to inherit the intestate estate. The New York Probate Lawyer Blog has published many articles concerning the estates of persons who die without a Will.
The fiduciary who is authorized to handle such an estate is known as an Administrator. In order to have an Administrator appointed for an estate, a petition for letters of administration is filed with the Surrogate’s Court. One of the items that must be provided in the petition is the name and address of all of the decedent’s distributees. These are the individuals who have the right to receive a share of the estate.
The Court always requires that along with the petition it must receive an Affidavit of Kinship and sometimes additional proof to demonstrate that the persons listed in the petition are all of the individuals who share in the estate. These individuals not only are entitled to an estate share, some of them may also be entitled to be appointed as the Administrator.
When there is difficulty in determining or showing who the decedent’s next of kin are, the Court may require a Kinship Hearing to resolve this issue. Kinship cases can be very complicated and require the submission of kinship documents such as marriage, birth and death records in order to show the decedent’s family tree.
If an Administrator does not fully and accurately determine who the estate distributees are, estate administration may be delayed. Also, the Administrator may be responsible for paying out estate funds to distributees incorrectly or leaving out some of the decedent’s next of kin. In the recent case of Matter of Benson, the estate Administrator did not pay out the estate assets to two of the decedent’s distributees. All of the other known distributees were paid the balance of the estate funds. Benson was decided by Albany Surrogate Stacy Pettit on July 7, 2017. After receiving the settlement proceeds from an asbestos litigation, the Administrator paid all of the proceeds to herself and two of her siblings. However, the decedent also had two half-siblings who were not included in the Administration proceeding and did not receive any part of the settlement payout.
While it appears that the failure to include the two half-siblings in the proceedings was an oversight, the Court found that they should have been included and should have received their fair share of the settlement. The Court surcharged the Administrator and directed the Administrator to pay the sum of $597,919.65 to satisfy the excluded shares. Thus, the Administrator either could recoup the overage paid to the siblings who already received a payment, or be personally responsible for the monies to be paid to the excluded half-siblings.
As can be seen from Benson it is extremely important to provide the Court with full and complete kinship information when finalizing administration petitions. The assistance of professional and experienced counsel may be invaluable. If you have any questions regarding an Administration case or a probate proceeding, call me now for a free discussion.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Manhattan and Brooklyn. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.