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:
- 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!
- 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.
- 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.