Monday, October 29, 2012

Kinship - Part 2

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 begins to administer the Estate. The Public Administrator is a locally appointed official who steps into estate cases when there is nobody else available to act. In a County like Queens, with 2 million people, this happens quite often. The PA has a good sized staff, and a highly skilled law firm to represent them.

The Public Administrator does 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 accounts and assets, they deal with claims of creditors, they file tax returns, and do anything else that may be needed.

When they reach the point where an Estate Administrator/Executor 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, detail all the money taken in and paid out, and ask the Court to approve the way they have handled the money and the claims.  They also ask the Court to set an attorneys fee for their attorneys.  They notify all interested parties, and when the accounting proceeding is heard in Court, any disputes are resolved. The final thing the accounting proceeding requests is a determination regarding WHO is entitled to receive the balance of the money.  They will identify any cousins they know about, but refer to them as "alleged" cousins. 

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 is not as simple as it seems.  Not only do the cousins have to prove who they are, they have to DIS-prove prior inheritance classes AND show how many cousins there actually are.  This can 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 cases are often gut wrenching.  In law school they called these "laughing heirs" cases.  Law students probably think these never actually happen, but they actually happen pretty often.  

The thing is, they could be simply avoided......if only the person (whose closest family are cousins) had made a Will.  There comes a point in every kinship case where I think this.  Still, many people don't make a Will, and the cases keep happening. 

Next post:  Kinship Part 3 (Nuts and Bolts)

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