Frequently Asked Questions
KINSHIP
Q. If contacted by someone from the Public Administrator’s office, is the Public Administrator my attorney? Or - Do I need my own attorney?
A. The Public Administrator (“PA”) is not your attorney. Most likely, the PA contacted you for information regarding the decedent because he/she believes you to be an heir of the estate. The PA, together with its counsel, will be administering the estate of the person who died with no known relatives or with distant relatives. The PA does not represent you. In order for you to prove in court that you are a distributee (heir) of the decedent and stand to inherit, you should consult a private attorney. Call the law offices of Linda F. Katz, Esq. to represent your interests.
Q. Isn’t it sufficient to submit my birth certificate to prove who I am? Why do I need to hire a lawyer?
A. Kinship cases can be complex and lengthy and the oral and written proof to be submitted at trial must conform to the rules of evidence. You not only have to prove who you are, but you must close out all the other classes on the family tree. Pro se litigants (persons repre-senting themselves), although not attorneys, are still held to the procedures of the Surrogate’s Court statutes.
Q. What documents are required?
A. In general, it will be necessary to submit original birth, death and marriage certificates of all individuals on the family tree. Documents in a foreign language must be translated and must have an Apostille certifying it to be a true and accurate document. This is a costly and time-consuming process which your own attorney will handle for you.
Q. Will the original documents be returned?
A. Yes, at the end of the kinship trial the original documents are returned.
Q. How long does the kinship procedure take?
A. From the time the case begins in court (not from the first time you are contacted), the case can take approximately two years to prove.
Q. Will I have to appear in court?
A. Most heirs never appear in court. However, in kinship trials in the boroughs of New York City oral testimoney is required from a family member who can prove everyone (or almost everyone) on the family tree. The court does not want duplicate testimony, therefore, we determine beforehand which family member has the most knowledge and invite him or her to appear. Most people find it to be a very interesting experience.
Q. What happens if I die before the kinship trial is concluded
A. As someone who outlived the decedent, your estate will inherit your interest and the money will be distributed according to your Last Will and Testament or estate plan. A representative (fiduciary) will have to be appointed in your estate in order to collect any money. If no fiduciary is appointed, the share due your estate will be deposited with the Finance Administrator of the City of New York.
Q. If I hire you as my attorney, do I have to pay any money upfront?
A. No. I accept the case on a contingency basis and do not ask you for any upfront moneys for fees or disbursements. We order and pay for all document costs and then are reimbursed at the end of a successful trial. If we should be unsuccessful, you do not owe any money.
ADMINISTRATION
Q. If my family member dies without a Last Will and Testament (intestacy) does that mean New York State gets decedent’s estate?
A. No, decedent’s money (estate) does not escheat to the State.
Q. What is the procedure to get appointed to represent the estate of a family member who dies without a will?
A. The surviving distributees, e.g., a spouse or adult child, should peti-tion the court for Letters of Administration. If no spouse or adult children, the order of priority for granting Letters of Administration is: adult grandchild, father or mother, brother or sister.
Q. What if the surviving spouse is an undocumented alien (non-citizen, no green card, or non-domiciliary alien)?
A. The spouse is a distributee, but does not qualify to be appointed Administrator of the estate. He/she can designate an attorney or other eligible person to be Administrator. All distributees have to sign a consent to designate said eligible person. If the spouse is a legal permanent resident and resides in New York State, he/she can petition for Letters of Administration.
Q. Who can be the Administrator if the surviving spouse and children all reside in a foreign country?
A. Any distributee who is not a U.S. citizen and resides outside the U.S. is not eligible to receive Letters. It will be necessary to have a person who has legal status in the U.S., such as a relative or friend, petition the court to be appointed.
Q. What if the sole distributees of the decedent are minor children? Who qualifies to be an Administrator?
A. Minor children do not qualify to serve as representative of the estate. It will be necessary for the person with whom the infant resides to be appointed Guardian of the Property of the infant. Then said Guardian of the Property of the infant can apply for Letters of Administration.
Q. If a family member dies without a will, how is the estate divided?
A. The estate is divided according to the New York State laws of descent and distribution. If a decedent is survived by a spouse and no chil-dren, then the spouse gets 100% of any estate assets. If survived by a spouse and children, the first $50,000 and one-half of the balance of any monies due the estate goes to the spouse and the remaining balance is divided equally among the children. If survived by children and no spouse, then the whole goes to the children in equal shares.
Q. Can stepchildren inherit any of decedent’s assets?
A. No, stepchildren do not inherit. However, if they were legally adopted by the decedent, then they will inherit.
Q. Will a common-law wife/husband inherit?
A. No, not in New York State.
PROBATE
Q. What does it mean to probate a will?
A. This is the judicial procedure by which an original document called a Last Will and Testament is proven to the satisfaction of the court to be a valid will.
Q. If the will names me as Executor, can I begin immediately to collect and distribute the assets of the estate?
A. No. You must probate the will (see Q.1 above).
Q. How long does it take to probate a will?
A. Each case is different. The process can take several months to a couple of years depending on the nature and extent of the assets, the whereabouts of all distributees, whether or not anyone is contesting the will, etc.
Q. Do I need to hire an attorney?
A. The law does not state that you must hire an attorney, however, most people find it necessary since the procedure can be complex and time-consuming.
Q. My mother (father) disinherited me. Can I contest the will?
A. In New York State, a parent is not obligated to leave money to his/her children. However, if you believe that the decedent lacked mental capacity, or that the will was not properly executed, or that there was fraud or undue influence exerted, then you may wish to obtain skilled legal counsel.
Q. Do I have to probate a will if all of decedent’s assets are in joint name or have a named beneficiary?
A. No. Contact the financial institutions and inquire as to their procedure to collect the assets.