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)

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.

Who Should Really Make a Will?

Who Should Really Make a Will?
The answer to this question starts with a question.....

"Who would inherit from you if you did not make a Will?"

When I interview someone who wants to make a Will, the first group of questions I ask is THAT. There is a good reason I start with this. It usually lets me know who the "players" are. Not only that, later on, the people on my little family tree are the people who must be notified when I try to probate the will.

People are sometimes taken aback when I start off questioning them about their closest family members, and sometimes they even say "But I don't want those people in my Will". This is fine with me, but I still have to know who they are. This is because anyone who would inherit if there were no will, is someone I have to notify when the Will is being probated. Legally, we call these people "adversely affected" by the Will. They are the only people who have standing to contest a Will. Even if they are not going to be in the Will, I need to know who they are. If it's a close relation, say a child or a sibling, I will usually ask WHY they are being left out, and I make a written note of it in my file.

When somebody is left out and squawks after the person dies, having a note about it in the drafting attorneys file is VERY important. When I represent someone in a potential will contest, one thing I hate to see is a note in the drafting attorneys file explaining WHY the person is being left out. If I see this it is usually enough reason for me not to take on the will contest.

I am amazed at how often people do not consider the question "Who would inherit from me if I did not make a Will?" The place I usually see this is Estates where there is no Will, and distant relatives are inheriting. I see this often, sometimes with a lot of money involved, and I always think "Did the person never think of what the result of not making a Will would be?" "Could they have intended THIS?" Did they not have a friend or a charity that was more deserving than the cousin once removed (who never met the decedent)?

Think this never happens?

I GET THESE ALL THE TIME!!!

I frequently represent distant relatives in this position, and this is often a major score for them. I like these cases too, but at some point in the case it always occurs to me (and it sometimes occurs to people who actually knew the decedent) "they should have made a Will".

I have also had many cases where people told me "the decedent talked about making a Will", or "he told me he was going to make a Will", but for some reason they never did. I think there are several reasons for this....

Procrastination - an intent to do it in the future, and just not dealing with it.
Superstition - a fear that doing it will cause illness or death.
Cheapness - not wanting to pay for a Will.
Delusions of immortality - more people have this than one might think.
Monumental inconsiderateness - totally not caring what happens to others after you go.

Strangely, Wills are most often made by people in a tight nuclear family....say a married couple with two children. There are good reasons for such people to make Wills too, but the fact is, the results if they don't are not so different then if they do.

People who don't or can't ask the question "Who would inherit from me you if I did not make a Will?" are often some combo of cheap, procrastinating, superstitious, monumentally inconsiderate, and/or delusional (vis a vis their mortality) individuals. I don't mind this all that much, these end up being my largest fee cases, but.....it sure is puzzling.

Maybe they "just can't deal with it", and on many levels I understand and respect this. I also know that if you are the person someone SHOULD be putting in their Will, it is a difficult subject to bring up. I've had people ask me what to do in this situation. Not only is there is no easy answer, but every situation is unique.

I will say this.....if the person has talked about it, and you think they WANT to do it, help them get it done. But, as we say in poker, don't overplay your hand.

Yeah, this gets complicated. But not nearly as complicated as when procrastination wins out, and the person who should have made a will doesn't.

Next post - something not death related!!
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Labels: lawyering, Who Should Really Make a Will?, Wills

The Why of Wills 4 (Kinship and more)

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.

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.

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.....

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….