Sunday, October 7, 2012

Kinship Proceedings, Part 1

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 estate is administered by the Public Administrator of the County where the person dies.  The Public Administrator is a public official who becomes the fiduciary in certain cases.  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.  They administer the Estate by marshaling the assets (including selling houses and other property), and paying debts and taxes they can find out about.  They do anything and everything that an Executor or close family member would do. They sometimes arrange burial, they clean out apartments and houses, and they try to figure out who the closest relatives are.  

When they reach the point where an fiduciary 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, state all the money taken in and paid out, and ask the Court to approve the way they have handled the money and the claims. and set an attorneys fee for their attorneys.  If there are any disputes or unresolved issues, those parties are notified, and they have an opportunity to be heard in Court.  The final thing the proceeding addresses is "WHO IS ENTITLED TO THE MONEY"?  The PA will list the parties they think may be entitled, but refer to them as "alleged" heirs.  Many times these are cousins of the decedent, and they will be listed as "alleged paternal first cousin" or "alleged maternal first cousin"  When a first cousin receives such a notice, they should be filing an Objection to the accounting proceeding, on the grounds that they are not "alleged" cousins, but in fact, cousins.  This is the essence of a kinship proceeding.  

After filing objections,  a "Kinship Proceeding" should then follow. This is when the cousins have to prove who they are, and disprove all parties and classes who may have prior rights.  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, but generally worthwhile because there tends to be meaningful money involved.   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.  When I was in law school they called these "laughing heirs" cases.  I used to think these were hypothetical situations that would rarely happen.  In reality, it's quite common.  The thing is, they could be simply avoided......which is why a person whose closest family is cousins SHOULD make a will.  Ah, but so often they don't.

Next post - The nuts and bolts of kinship proceedings.

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