If a person dies without a Will, and the closest relatives are aunts, uncles and first cousins, do they inherit in New York?

The answer is YES, but there are some special rules. Aunts, uncles and cousins can inherit if there is nobody in the prior inheritance classes (spouse, kids, parents, siblings, nieces or nephews).  Here are just a few of the special rules:

  • Usually first cousins are not permitted to serve as Administrators of an Estate. The Public Administrator (in the 5 boros, Nassau, Suffolk and Westchester) generally serves as Administrator in cousin cases.  In the other Counties the County tax assessor acts as Administrator.
  • In aunt/uncle/cousin inheritance cases the Estate is divided into two halves, the maternal and paternal sides.  In a cousin case we must look at the status of aunts/uncles/cousins on the decedent’s mother’s and father’s side of the family.  As an example, if there is one cousin on the father’s side and ten cousins on the mother’s side, the paternal first cousin gets 50% and the ten maternal cousins split 50% ten ways.  Life is hard sometimes.
  • First cousins once removed (children of first cousins) can only inherit if there are no other first cousins on either side of the family.  First cousin once removed cases can be tough.

When the Public Administrator handles an Estate, they do anything and everything that a typical family member Administrator would do. They sometimes arrange burial, they clean out apartments and houses, 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 ultimately they try to figure out who is legally entitled to receive the inheritance.

When they reach the point where an Administrator would ordinarily pay the money to the heirs, the Public Administrator will file an “Accounting Proceeding”. Essentially, they set forth for the Court what they have done, detailing 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 to approve fees for their attorneys.  The final thing the accounting proceeding requests is a determination regarding WHO is entitled to receive the balance of the money. The Public Administrator does a kinship investigation, so they generally list (and notify) the people they believe are the cousins. However, in the Accounting Proceeding they refer to the cousins as “alleged” cousins.

When cousins receive a Citation in an Accounting Proceeding where they are called “alleged” first cousins, they should retain counsel and file Objections with the Court.

This is the beginning of a “Kinship Proceeding”.  In a kinship case, 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. The proof in these cases consists of testimony and certified documents.  Typically it is necessary (and certainly helpful) to use a genealogist to prepare a family tree and obtain the necessary documents.

Proving negatives creates some special challenges.  In future posts I will address many of the techniques that are used to prove kinship.

Attorneys who do this type of work will generally agree to work on a contingency fee basis.  If I investigate the situation and think the case can be proven, I am amenable to contingency fees.

It is worth noting that there are at least three distinct risks that can sometimes derail (or devalue) these cases:

  1. A person with prior inheritance rights.  For example, if the decedent’s father had a another child (maybe from a prior marriage or out-of-wedlock), that child would be a half-sibling of the decedent and would be ahead of all the aunts/uncles/cousins.  I’ve seen this scenario more than once!
  2. A Will can be filed while the case is pending.  Generally, if a Will gets filed the Court has to consider it, and the wishes of the decedent are accorded great priority.  This can and does happen too.
  3. A big lien or creditor claim.  This can be for Medicaid or Social Services, but any creditor claim is a concern.

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 kind of sad. For people who are notified out of the blue that “your cousin so and so died, and you may have inheritance rights”, not so sad.  In law school they called these “laughing heirs” cases. Law students probably think these never actually happen, but they actually happen pretty often.

If you receive a notice from the Public Administrator about one of these matters, or if you are contacted by a “genealogy company” about it, please give me a call.

When I represent someone who is about to become a Fiduciary (Executor or Administrator) of an Estate, I always talk about “how an Estate finishes”.  Like many things in life, if you know where you are trying to go it is easier to make a good plan to get there.

Not every State handles “estate completion” the same way.  There are two basic approaches:  mandatory accounting vs non-mandatory accounting.

In a mandatory accounting State, some proceeding that must be filed so the the Court knows the Estate has been properly completed.  This generally involves filing forms and paying a filing fee.  There are generally time constraints   I’m not going into more detail because New York (where I practice) is NOT a mandatory accounting State.

In a non-mandatory accounting State, the fiduciary is not required to file anything with the Court to show that the Estate is completed.  This raises two logical questions:

  1. What SHOULD fiduciaries do to complete an Estate and protect themselves?
  2. What happens in New York if there is some issue or problem in completing the Estate?

What a fiduciary SHOULD do is keep good records, communicate regularly and transparently  with the beneficiaries, file any tax returns that are required, and then….SEEK TO COMPLETE THE ESTATE WITH AN INFORMAL ACCOUNTING.

This is done by showing the beneficiaries what has been done.  This can be done with a letter, or on a spreadsheet, or in any way that shows a bottom line for a proposed final distribution.  With this informal accounting we send a document called a “Receipt & Release”.  This essentially says “I know what you did as Fiduciary and I agree it was correct and I agree with the bottom line and I release any claims I may have about this”.  The letter to the beneficiary makes clear that when the Receipt and Release is signed “then you will get your money”.

What if the beneficiaries don’t agree?  Or don’t respond?

While New York is not a mandatory accounting State, the Surrogate’s Courts have an Accounting Department, and CAN file a formal Accounting Proceeding.  Unfortunately, this happens a lot.  The Accounting Department is where the action is, and most of the really acrimonious disputes are there.

In a nutshell, when a Fiduciary wants approval for what he has done, or what he is proposing to do to complete the Estate, a formal accounting is filed with the Court.  The Court will then issue a Citation to the interested parties, telling them “The Fiduciary has filed the attached accounting and is asking the Court to approve it.  Come to Court on (date) or a Decree will be issued approving the Accounting.”

If a beneficiary gets such a Citation and wants to dispute something, they file Objections to the Accounting.  This then becomes a case, like any other civil litigation….discovery, motions, conferences, etc.

Generally an expensive, nasty mess.

Which is why it’s better to do a good job as fiduciary and find a way to account informally.

If you know this from the outset, and work transparently and with good communication, an informal accounting is much more likely.

 

Many lawyers deal with Surrogate’s Court only peripherally.  Considering that questions about Estates and Surrogate’s Court arise so often, it is worth knowing the basics. Here are the top 10 things worth knowing about Surrogate’s Court….

1. The Surrogate Court Clerk’s offices are broken down into departments:

– Probate (Appointment of a fiduciary when there is a Will)
– Administration (Appointment of fiduciary when there is no Will)
– Accounting (Issues concerning distribution of the Estate, a/k/a “fighting over the money”)
– Guardianship (protection of minors, personally and financially)
– Miscellaneous (all kinds of proceedings: entering an apartment, getting into a safe deposit box, removing fiduciaries, and more)

2. In probate cases there’s a presumption that an attorney drawn will (with the will signing supervised by an attorney) was validly executed.  With those wills, in a contest the burden of proof is on an objectant claiming improper execution. A non-attorney supervised will does not get this presumption, so the burden is on the proponent to prove proper execution. Sometimes this is a BIG hurdle.  Note to any LegalZoom Will customers – Think about the above before you “save money” doing it yourself!

3. To the extent any beneficiary in an Administration (intestacy) proceeding does not waive the requirement of the fiduciary posting a bond, the proposed fiduciary must post a bond in proportion to the beneficiaries interest. VERY often proposed fiduciaries have difficulty qualifying for a bond.

4. If there is a delay in a probate or administration proceeding, and something important needs to be done (like selling a house or co-op), it often makes sense to obtain “preliminary letters”. It costs some money and requires a bond, but in the end it can save the Estate a lot of money.

5. Contrary to what many clients think, death does not absolve an Estate from creditor’s claims. A fiduciary must address claims they know about or had reason to know about. There are a lot of rules and case law on this, but the bottom line is fiduciaries do better when they address claims pro-actively. There are also some claims (funeral, administration expenses, taxes) which take priority over general creditor claims.

6. When a proceeding is filed to open a safe deposit box to search for a Will, the box is opened in the presence of a bank officer. The contents are inventoried, and if a Will is found it is delivered to the Court. If a box is being opened after a fiduciary is appointed, the bank officer should not be observing. The fiduciary has a right to open the box on their own.

7. Nothing substantive can happen on a Surrogates Court proceeding until “jurisdiction is complete”. This occurs when all the interested parties have either signed a Waiver or been served. In a probate proceeding, all parties who would have an inheriting interest under intestacy are entitled to notice. This is true even if they are not named in the Will!!!

8. Whenever an interested party can’t speak for themselves (some examples are minors, disabled people, missing people, or “unknowns”) the Surrogate appoints a “Guardian-ad-Litem” for them. The Court fixes a fee for the Guardian-ad-Litem after they file a report, and they are paid out of the Estate. I’ve heard cynics question this, but in my view, this procedure is absolutely essential. I have served as a Guardian-ad-Litem many times, and take these assignments very seriously.

9. Estates worth under $50,000 (with or without a Will) can be handled under a simplified proceeding under Article 13 of the SCPA (Surrogates’s Court Procedures Act). These are designed to be handled without an attorney. Prior to the pandemic, most clients can handle these on their own.  At this time, e-filing is mandatory on all new cases, including Small Estates.  This is a big challenge for unrepresented (pro-se) persons.  An appointment in a Small Estate proceeding enables a person to collect up to $50,000. However, they would not be able to sign a deed or transfer real estate with this type of appointment.

10. First cousins can inherit under intestacy, but generally they can’t become fiduciaries. In “cousin cases”, the Public Administrator is the fiduciary. These Estates ultimately become “kinship cases”. This is a fascinating specialty within Surrogates Court practice.

Sometimes Surrogates Court seems like it’s own little world. It has many unique rules and procedures. All of these are designed to ensure fairness and prevent premature or improper distributions. Once one gets the hang of it, it starts to make sense. Most of the time, anyway.

The word “probate” is often tossed around as something to be avoided.  As if the failure to avoid it were a mark of stupidity, or symbolized a lack of care or planning.

On some level if a person does extensive planning, and has ALL their assets with named beneficiaries, or if a person creates a trust (AND takes the additional step of transferring ALL their assets to the trust), probate can be avoided.

But what is actually being avoided?  Is avoiding it worth the effort?

What is probate, really?

In New York, probate means that a Will has been recognized by the Surrogates Court as proper.  The end result is that somebody (usually the person named as Executor in the Will) receives a document from the Court called “Letters Testamentary”.  This is the Executor’s proof that he/she has authority to act on behalf of the Estate.

When there is a Will, you need Letters Testamentary to transfer any asset (bank and brokerage accounts, real estate, co-op apartments, etc) that was owned in the name of the deceased person,.

If you are named as an Executor in a Will, and you have the original Will and a death certificate, can you go into a bank and close out a deceased persons account? Nope.  The bank will tell you to come back with Letters Testamentary. What they are really saying is “get the will probated”.  This requirement is essentially a safety measure that protects all the interested parties.

Probating a Will is a Surrogate’s Court proceeding.  The specific facts and circumstances will determine whether it’s simple (and many times it is) or complicated.

I’ve heard people say that many procedures were “invented by lawyers to make things complicated so lawyers can make money”.  I see it quite differently, and I would summarize the need for these proceedings as follows:

“There is no end to the creativity and deviousness of SOME people when it comes to doing what is NOT proper, ethical, moral and legal.  The court proceedings are designed to protect the wishes of the person who made the Will, as well as to protect those who the decedent intended to inherit.  Related to that is sometimes it’s just not clear that the “Will” in question is actually what the person wanted. The procedures are designed to make sure the people affected by the Will are notified and that they have an opportunity to be heard (if there is some issue worth hearing)”

Since there is no way for the Court to know in advance whether a particular Will has “issues”, or whether the people involved are honest and nice, to probate a Will and get Letters Testamentary requires following the procedures.  That being said, VERY often you can identify the interested parties, they can all sign a “Waiver and Consent”, and the Will can be admitted to probate (and Letters Testamentary issued) pretty quickly.

Does it take some legal knowledge and time and experience to probate a Will? Sure, but in friendly situations (which is often the case) the fees should not be onerous. If they are, call a different lawyer. Can the fees become substantial if there are issues with a Will?  Certainly, but we lawyers didn’t create a system to encourage that. The procedures are in place to be sure that interested parties are heard and can have the issues resolved by a Court if necessary.  Personally, I’d rather earn modest fees in friendly situations, as opposed to bigger fees from dysfunctional family feud cases.  But hey, we can only play the hands we are dealt.

Probate is not a dirty word.  It’s a necessary proceeding so that a person’s Will can be carried out.

Lastly, in case it occurred to anyone, if there is no Will there are procedures for that, and interested parties are protected.  Those are called Administration Proceedings, and the end result is an Administrator gets Letters of Administration, and can do their job.  This topic is discussed in other articles!

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, per stirpes *

– if spouse and children, first $50,000 to the spouse, then 50% to the spouse and remaining 50% to the children, per stirpes *

– if no spouse or children, all to the parent(s)

– if no parents, all to siblings (or children of predeceased siblings, a/k/a nieces/nephews), by representation **

– if no siblings or nieces/nephews, you start getting to aunts/uncles and cousins. (lots of special rules)

– if no aunts/uncles/cousins, you go to first cousins once removed, ie – children of pre-deceased first cousins (even more special rules)

* I try to avoid using legal lingo, but “per stirpes” comes up a lot, and is mentioned in lots of wills.  It means “per the lineage”, and can be illustrated with a simple example.  If an unmarried person dies, and had two adult children, but one of the children had pre-deceased but had three children (grandchildren to the person who died), the estate would go 50% to living child, and 50% split 3 ways among the children of the pre-deceased child.

** Sibling/niece/nephew cases are not done per stirpes, but “by representation”.  The best way to calculate this is to say its sort of like per-stirpes BUT nobody has an advantage or disadvantage by being in a larger or smaller family.  A simple example to illustrate this:  The decedent was not married, had no children, and parents pre-deceased.  He had three siblings, one is living and the other two pre-deceased.  Of the two who pre-deceased, one had two children and the other had four children.   Under inheritance by representation, the surviving sibling would inherit 1/3, and the remaining 2/3 would be divided equally among the six nieces/nephews.

The above is a rough sketch.  There are rules to cover EVERY situation you could think of, and they ALL come up.  When the question is “which relatives are entitled to what percentage”, there is always an answer to that question.  Of course, sometimes it is not so clear who is legally related. As you might imagine, we sometimes have to determine who was married (or divorced), or who was somebody’s parent, or was somebody legally adopted, or whatever became of somebody who has gone missing.

Another important aspect of the intestacy rules is that if there is no will, only a person who inherits under intestacy is entitled to petition to become the Administrator.  This can be a very important consideration when trying to figure out who can act and what they should do.

It’s also worth noting that even when there IS a Will, probating it requires getting jurisdiction (placing on notice) those people who would inherit under intestacy, since they are the only ones with standing to contest a Will.

Please contact my office if I can assist with any inheritance issues.

In this article we will review the inheritance rights of first cousins, first cousins once removed, and second cousins under New York law.

People often use the “cousin” terms loosely, as if they were interchangeable.  For family and social purposes they are interchangeable, but legally they are decidedly NOT.  This distinction arises in two particular situations:

  1. When a person dies without a Will (which is called “intestate”) and the closest relatives are cousins.
  2. When a Will is being offered for probate and the Court has to decide who is entitled to notice, which are people who may have intestacy inheritance rights.

For cousins to be in play, the decedent would have to die without spouse, children, grandchildren, parents, siblings, nieces/nephews.  Aunts/uncles (if any) would inherit, along with first cousins, but aunts/uncles knock out their own children in this scenario.

When discussing cousin inheritance rights, it is crucial to define the terms:

First cousin – The intestacy statute doesn’t use the word “cousin”.  It refers to first cousins as “children of common grandparents”.  Here’s the statute (EPTL sec 4-1.1) https://codes.findlaw.com/ny/estates-powers-and-trusts-law/ept-sect-4-1-1.html The first hundred or so times I read this it seemed confusing, but if you think about it, how else could you define a cousin?  True first cousins share a common grandparent.  That’s it.  Most people can think of clear examples in their own family…”Grandma Anna’s brother (Uncle Joe) had a son Bobby, who is your first cousin Bobby.”

Second cousin – At the end of the first cousins section of the statute (paragraph 6) it says:  “….issue of grandparents shall not include issue more remote than grandchildren of such grandparents”.  So, a sometimes startling fact: “second cousins to a decedent do NOT have inheritance rights in New York.”  Second cousins, which most of us have and know (and call them cousins) share a common great-grandparent.  The reason we often know them fairly well is that their parent and ours were first cousins (because THEY shared a common grandparent).  But, legally such people are second cousins to each other and don’t inherit under intestacy.

First cousin once removed – What if first cousin Bobby has previously died and he had a daughter Jane (who is close in age to you and you always called her cousin Jane). She is not a first cousin.  A child of a first cousin is called a “first cousin once removed” because they are a generation below.  If you want a brain-bending experience please read paragraph 7 from the link above.  The paragraph refers to “great grandchildren of grandparents”, and as I’ve thought about this over the years, it DOES define it better than any other way it could be defined.  These folks only have inheritance rights in limited situations.  The only time first cousins once removed can inherit is if there is nobody at the level of first cousin on either side of the decedent’s family.  This wasn’t totally clear in the statute, but was resolved in an interesting case called “Matter of Shumavon” https://casetext.com/case/matter-of-shumavon   The bottom line for that case is “first cousins on one side of the tree inherit ahead of first cousins once removed on both sides of the tree”.  Believe it or not, this actually comes up fairly often!

One more thing about cousin cases.  When first cousins might be inheriting, we have to look at the decedent’s maternal and paternal first cousins.  Most people have cousins on both their mother’s and father’s side, and by law the inheritance is 50/50 to each side.  So, if there are two paternal cousins and ten maternal cousins, 50% is shared by the two paternals and 50% is shared by the ten maternals.

Very often the people inheriting as cousins under intestacy were not close (in the personal sense) to the decedent.  Or, one cousin was actually close and thirty others weren’t but they are forced to share equally.  This illustrates something that occurs to me at some point of every cousins case, which is “This person should have made a Will”!!

At some point everyone “thinks about making a Will”.  Some turn the thought into action and do it.  Some don’t.

As a lawyer I say everyone should act on this thought, but in reality the consequences of not acting may not be SO bad, IF the results would be relatively the same with or without a Will.  When a person has a spouse and some grown children, and everyone is friendly, things will probably work out if the person dies without a Will.  OK, you wouldn’t have the ability to name one of them as Executor, but they’ll figure it out because they are good kids.

Sometimes it could be a little bad if there isn’t a Will, if kids who seemed to get along start vying for “who is going to handle things”, and friendly siblings now have resentments they’ll never lose.  OK, kinda bad, kinda sad, but that’s life.

Sometimes, thinking about a Will and not acting is downright DANGEROUS.

Here are a few ways I have seen this play out ……..

  • Elderly spouse in nursing home inherits and the money is lost to the kids as the nursing home or Medicaid get it.
  • Disabled child inherits and a mess and family feuding follows.
  • Drug/alcohol abusing adult child inherits and blows their inheritance.
  • Adult child with health issues inherits, then dies and their evil spouse gets the inheritance.
  • Person’s closest relatives are 15 cousins, most of whom they have no contact with, and they inherit rather than people who person “thought they would leave it to in a Will”
  • Person has a long standing, intimate relationship with someone but is not legally married, then they die without a Will and the relatives not only inherit, they kick the surviving person (the one that had the relationship) out of the house.  These are some of the saddest cases and could have been easily avoided.
  • Person disliked their closest relatives and had a bunch of great friends (and charities they cared about), but didn’t make a Will.  So, the creepy relatives inherit everything and friends and charities get nothing (other than knowing you thought about putting them in your Will)

There are so many scenarios where thinking and not doing are dangerous and wrong.  They have a simple, recurring theme:

IF THE RESULT FROM NOT HAVING A WILL WOULD BE DRASTICALLY DIFFERENT FROM WHAT YOU WOULD WANT TO WATCH FROM HEAVEN,

CALL A LAWYER AND MAKE A WILL!!! 

P.S. – It’s not expensive and you will sleep better.

 

 

 

 

Under New York law, when a person dies without a Will, sometimes  first cousins CAN inherit, subject to certain special rules.

The most significant rule is that while first cousins can inherit, generally they cannot serve as fiduciary.  This job goes to the Public Administrator if the County has one (5 boros, Nassau, Suffolk and Westchester Counties do).

After the Public Administrator is appointed, they do what a fiduciary is supposed to….marshal the assets, pay proper debts and taxes, and then account to the heirs.

When the Public Administrator files an Accounting Proceeding where they believe the closest heirs are first cousins, they list them as “alleged first cousins”.  They get served a Citation.  Their response should be to file “kinship objections”, essentially saying “I am not alleged, I AM”

Thus begins a kinship proceeding.

During a kinship trial, cousin claimants not only have to prove their relationship, they also have to dis-prove the prior classes.  Specifically, they have to prove that the decedent died without a spouse, children, grandchildren, parents, grandparents, siblings, nieces/nephews.  It can be challenging to prove the non-existence of classes of people.

However, there are a few sources and techniques we frequently use:

  1. Testimony – During a kinship trial we need court testimony to lay a foundation for the introduction of documents into evidence.  The best testimony often comes from older relatives who can  “testify as to the family tree”.  Not everyone can do this, and not every family has someone who can do it. But many do.  In a cousin case we need someone testify about the decedent’s grandparents and more importantly, the grandparents children (who are the aunts and uncles of the decedent). Testimony and documents about aunts and uncles is crucial in a cousins case because after all, who are cousins? They are children of aunts and uncles!
  2. Surrogate’s Court records – These are the gold standard for proof in a kinship case.  This is because the files contain Affidavits where people swore to familial information.  So, if you have an old Surrogate’s Court file for Grandpa, where there are Affidavits naming his children, this is very useful in establishing how many aunts and uncles there were.  These files often have other useful peripheral information too.  Outside of New York there are similar Courts relating to probate and inheritance.  They are always worth looking at in kinship cases.
  3. Obituaries – The internet has made these much easier to locate and obtain.  When trying to prove how many children someone  had, or who someone’s relatives were, obits have the goods.  That being said, sometimes they get it wrong.  Discrepancies in obits can often be explained with testimony.  So, obits are useful, but you have to look at them carefully.
  4. Census records – You can send away for certified Federal (and State) census records.  The Federal census is every ten years, and at this time you can get them through 1940.  These are very useful in establishing how many children a particular person had.  The records are pretty detailed regarding who was living in a particular household, and how they are related.  As with obits, sometimes the census records really help, and sometimes they present questions that have to be explained.  Like, if in 1920 you have a 3 year old showing as a child in a household, and in 1930 that child is no longer there, what happened?  Sometimes there’s a useful explanation….like, he died.  But what if the explanation is “the family was poor so he was sent to live with relatives down South, and we lost track of him”?  Hopefully you can pick up the trail and account for this person and his/her offspring.
  5. Military records – these can often be obtained and provide useful family information, particularly about a person’s parents.
  6. Church records – Very useful for marriages, births and sometimes deaths. Very often in kinship cases we are going back in time and needing to prove family histories from other countries. Very often the local church records are a good source of documents and leads to other documents.
  7. Cemetery records and tombstones.  Yes – I’ve even gone myself and looked, and taken a picture or two to use as evidence.
  8. Documents themselves – Sometimes documents themselves prove more than what you got them for, and/or provide great leads.  For example, death certificates show marital status and also show the relationship of the “informant”.  Marriage records list parents.  Immigration records list family members and relations. Birth certificates from many places list “number of children born to this mother” (which can either be very helpful or cause a need for some ‘splaining)

The records above are just a few of the more common techniques and sources.  But every case presents unique proof issues, and we are always finding new and creative ways to establish kinship.

Next post – Saving the day in kinship cases…SCPA 2225

When I refer to a “probate case”, I am talking about any situation where someone has died and now someone else is in my office.

In these situations there are 3 main areas I ask questions about.  I can’t think of a situation where these questions would not be asked.  Asking these questions helps me figure out what may need to be done, helps me analyze possible scenarios, and helps me decide whether (and on what basis) I would consider getting involved.  Here are the 3 questions….

  1.  IS THERE A WILL?
  2. IS THE SITUATION FRIENDLY OR UNFRIENDLY?
  3. AM I BEING ASKED TO REPRESENT THE FIDUCIARY, OR SOMEONE AFFECTED BY WHAT THE FIDUCIARY DOES (OR DOESN’T DO)?

 

IS THERE A WILL?  Sometimes it’s not so simple.  Maybe we only have a copy?  Maybe the Will is questionable?  Maybe the Will was revoked?  Maybe we can’t locate the Will?Whatever the story is, I want to know any issues about a possible Will.   Sometimes the answer is a clear “there’s no Will”.  So be it, and we know we are doing an Administration under the laws of intestacy.   But at least we have square one covered…

 

IS THE SITUATION FRIENDLY OR UNFRIENDLY?  Contrary to what many people think, very often these situations are friendly.  That being said, even friendly situations require identifying and locating all the people whose written consent may be required.  This is true whether there is a Will or not.  Anyone who has a possible legal interest must be accounted for in the Court filings, or a fiduciary cannot be appointed.  So, in a friendly situation we would have the interested (friendly) parties sign the right papers (usually a “Waiver & Consent”) for whatever is going on.  If some interested party is unfriendly, I want to know what the problem is.  We can proceed even if there is unfriendliness, but we will have to put those folks on notice (usually with a Citation), knowing they may show up in Court and have something to say.  So be it, we can prepare accordingly…

 

AM I BEING ASKED TO REPRESENT THE FIDUCIARY, OR SOMEONE AFFECTED BY WHAT THE FIDUCIARY DOES (OR DOESN’T DO)? – Very often the person who contacts me is not the fiduciary.  In fact, they contact me because they have questions about what the fiduciary is (or isn’t) doing.   In those cases I ask first about #1 and #2.  I ask about the Will because I want to know what their interest is….a fixed dollar bequest?  a percentage?  an intestate share?  I ask about #2 because rather than assume things are very unfriendly, that is not always the case.  Sometimes nobody has actually asked the fiduciary (m)any questions.  While the fiduciary should have volunteered the info, a clear and polite request from an attorney will often get a useful answer.  Sometimes, it’s only a little unfriendly and things can be resolved with some level of inquiry.  And of course, sometimes it’s VERY unfriendly and the fiduciary is a dastardly sociopath.  In those cases you have to be prepared for ANYTHING.  I’ve been there, and getting involved is sometimes a bad choice.  It’s a choice I make VERY carefully, and if I sense insanity on the horizon, I say NO and never regret it.

Anyway – that’s how I approach every new case.  Three main issues, once we talk about all three I’ll have a good idea of what the options and scenarios are.

BTW – I would NEVER quote a fee, flat fee, hourly fee, percentage, or any other fee, without thoroughly discussing the 3 issues.  It would not be fair to a potential client and it would not be fair to ME (something I DO consider).

Comments and questions are always welcome!!!

 

 

WHO SHOULD MAKE A WILL AND WHY DON’T THEY?

What happens when a person dies without a Will? Contrary to popular misconception, their assets do NOT “go to the State”.  Their assets go to “family members” under the State’s laws of intestacy.  So, the question any sane person with assets should be asking is “Who would inherit from me if I don’t make a Will”.

If the answer to that question is not what the person would want, THEY SHOULD MAKE A WILL.

Which leads to the question….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…..when people who have “nobody to leave my money to”, why don’t they make bequests to friends?  or charities?

WHY…..do some people put off doing something they know they SHOULD do?

Here are 10 reasons I’ve seen:

  1. Procrastination as a way of life.
  2. Fear of tempting the evil eye.
  3. Not being able to decide who should inherit (or waiting to see who deserves it.)
  4. Not wanting to spend ANY money to take care of this “discretionary” item.
  5. Not wanting to discuss their personal business and/or finances with anyone.
  6. Thinking they’ll do it later, “when they need to”.
  7. Under valuing their assets…this usually happens when there is a house and no liquidity.
  8. Thinking they have all their assets passing directly, so a Will would be moot.  Sometimes this is true, but usually not.
  9. Guilt related to what departed persons (parents or grandparents) would think about what they want to do.
  10. Simply being a selfish, self-centered narcissist who doesn’t care what happens when they are gone.

One could probably write a book, or at least a blog post, about each of these.  I will not do that here.  I will simply note that each of these reasons raise questions that anyone who has ANY of those thought patterns ought to consider,along with my initial question “Who would inherit from me if I don’t make a Will” AND “How would that result sit with me for eternity IF I DIED TOMORROW”?

Eternity is a long time.