Probaters

[SCOUT]

I have a question about probate, particularly in the state of New York. My Great Aunt passed away this week and my Mother and I have been trying to settle her estate.

She had no children and my Great Uncle passed away in 1995. My Mother has been taking care of her from a distance. She lived in upstate New York and my Mother lives in Dallas. My Mother has taken care of her house (for 6 years), checked her in to a home (3 years) and arranged for hospice (18 months). My Mother has also had power of attorney since around 1996.

My Great Aunt had been working with an attorney since 1940 or so, and yes he is still alive and practicing. He is currently 96.

This last week, my Parents and I were in upstate New York trying to get things in order. We assumed it would consist of some paperwork, signatures etc. It turns out that there is a "blood cousin" (I use the quotes because the paralegal used this term about 50 times. My Great Aunt is the wife of my Great "Blood Uncle" :)) This person has not been in contact with my Great Aunt in at least 5 years and at that time it was to ask for money. No one has heard from her since then. Prior to that, the previous contact was 1978.

The will was re-written in about 1996 at the request of my Great Aunt. In that version, all of the assets were to be left to my Mother. I feel obligated to point out that my Mother did not find out about this redraft until 1999. At that point, she found it out from our experienced attorney and not from my Great Aunt.

Our experience attorney is saying that nothing can clear probate until we find this cousin (or her children, if there are any) agrees to the will by signature.

My question is, how exactly is my Mother supposed to find this person. Her name is Ann Jones. I am not kidding. If you know her, let me know...

Is she supposed to hire a private investigator? If so, the estate will support that effort for about a week and a half.

Is there any due diligence period that is deemed acceptable or are we expected to search the earth like Kane in Kung Fu for this person?

[Sooner Eclipse]

I had an experience like this, only much more complicated and involved what sounds like much more money. It can be researched using marriage, birth, adoption and tax records. Most likely an atty will have to do the research. In the case I was involved in, it took the attorneys appx 3 months to find and contact approx 120 people on both the mans and womans sides of the family. There was supprisingly little govt interference with the majority of the process. It took about 10 months to get a dispersement from the estate.

Sorry, I didn't really answer your question, but I would think that there is some way of making a good faith effort to find these people that would satisfy the probate court but its probably going to add a bit of time and attys fees to the process.

[SCOUT]

Good faith is where I struggle with this whole thing. What is considered good faith. If the attorneys spend a great deal of time looking for lost relatives, the estate will easily be exhausted. Is there a period of time that is acceptable?

[Sooner Eclipse]

I'm not the person to ask, but they used to settle something like this by posting ads in newspapers. But I think the person or their decendants wouldn't be that hard to find.

In the case I was talking about I never knew this person ever existed. The only son of one of my grandmothers siblings died without a will. The lawyers were able to trace family lineage to his parents siblings (about 20 of them, all deceased but for 1) and down from there. It didn't take too long and was not that consuming monitarily.

[Okla-homey]

I have a question about probate, particularly in the state of New York. My Great Aunt passed away this week and my Mother and I have been trying to settle her estate.

She had no children and my Great Uncle passed away in 1995. My Mother has been taking care of her from a distance. She lived in upstate New York and my Mother lives in Dallas. My Mother has taken care of her house (for 6 years), checked her in to a home (3 years) and arranged for hospice (18 months). My Mother has also had power of attorney since around 1996.

My Great Aunt had been working with an attorney since 1940 or so, and yes he is still alive and practicing. He is currently 96.

This last week, my Parents and I were in upstate New York trying to get things in order. We assumed it would consist of some paperwork, signatures etc. It turns out that there is a "blood cousin" (I use the quotes because the paralegal used this term about 50 times. My Great Aunt is the wife of my Great "Blood Uncle" :)) This person has not been in contact with my Great Aunt in at least 5 years and at that time it was to ask for money. No one has heard from her since then. Prior to that, the previous contact was 1978.

The will was re-written in about 1996 at the request of my Great Aunt. In that version, all of the assets were to be left to my Mother. I feel obligated to point out that my Mother did not find out about this redraft until 1999. At that point, she found it out from our experienced attorney and not from my Great Aunt.

Our experience attorney is saying that nothing can clear probate until we find this cousin (or her children, if there are any) agrees to the will by signature.

My question is, how exactly is my Mother supposed to find this person. Her name is Ann Jones. I am not kidding. If you know her, let me know...

Is she supposed to hire a private investigator? If so, the estate will support that effort for about a week and a half.

Is there any due diligence period that is deemed acceptable or are we expected to search the earth like Kane in Kung Fu for this person?

You generally have to do enough looking to convince the Court you made a reasonable effort and also notice by publication. I'm sure there is NY law on this just as there is in Oklahoma. The NY lawyer should be able to do this in his sleep.

Here's the Oklahoma statute for example. Its pretty standard and I bet the NY statute is close:


Oklahoma Statutes Citationized
Title 58. Probate Procedure
Chapter 2 - Probate of Wills
Section 25 - Hearing - Notice, how Given


When a petition for probate of a will is filed, the court must fix a day for hearing the petition, not less than ten (10) nor more than thirty (30) days from the date of filing of the petition, and if the names and addresses of all heirs, legatees, and devisees of the testator are known to the petitioner and are set out in the petition, the court shall cause notice of such hearing to be given as provided in Section 34 [58-34] of this title, by mailing copies of the notice to all heirs, legatees, and devisees, other than devisees and legatees whose devises and bequests are conditioned upon another named person's predeceasing the testator in accordance with terms stated in the will and such named person did not predecease the testator in accordance with terms stated in the will, postage prepaid, at their last-known place of residence not less than ten (10) days prior to the date of the hearing; provided, however, if the name or address of one or more heirs, legatees, or devisees of the testator is not known to the petitioner, or if one or more heirs, legatees, or devisees of the testator are alleged to have survived the testator but died prior to the filing of the petition and the petitioner alleges that he knows of no personal representative for the decedents' estates, notice of the hearing of the petition shall be given by mailing, as above provided, and, in addition thereto, the notice shall be published in one issue of a newspaper, and in such case the hearing shall not be less than ten (10) days from the date of publication of the notice. For purposes of this section, if a legatee or devisee is the trustee of an express trust or testamentary trust, notice need be given only to the trustee and not to the beneficiaries of the trust unless the beneficiaries are otherwise entitled to notice as heirs or as legatees or devisees of property not devised or bequeathed to the trust.

"Blood" relations are important because only they take under intestacy laws, except for spouses of course. If a person dies without a will (intestate), the estate is distributed among living blood relatives, even collateral heirs like cousins if that's is all that are living. Those people are sometimes referred to as "laughing heirs" because they may not have even really known the decedent and the news they just inherited from some deceased distant relative makes them "laugh" with glee.

The part I don't get is why the missing in action Ann Jones broad had to "sign off" on the will your aunt executed. Auntie was either competent to make a will or she wasn't. If she wasn't, then it isn't valid and the estate is distributed according to NY intestacy laws or the will that was in effect before this newest one. If auntie was competent to make a will in '96, that will should control.

DISCLAIMER: The above is not legal advice. Its merely an early morning response to a question asked on some sports message board. The asker should rely on the advice of his lawyer(s) and not this poster who is not responsible for the square root of crapola either way. In these matters, its usually best to remember free legal information is generally worth what is paid for it. So there.

[Tulsa_Fireman]

So should the unquestionable happen to me and a will is in place yet grants all of my estate (that sounds funny even saying it) to someone under 18, do I have to define and establish a trust previous to my demise, or will that be done when all the particulars are hammered out?

[Okla-homey]

So should the unquestionable happen to me and a will is in place yet grants all of my estate (that sounds funny even saying it) to someone under 18, do I have to define and establish a trust previous to my demise, or will that be done when all the particulars are hammered out?

trusts normally don't just "happen." You should go ahead and set one up if you intend to leave all to a minor child. It's pretty simple. The hard part is ususally deciding whom you trust (pardon the pun) enough to be the trustee who administers it.

DISCLAIMER: The above is not legal advice. Its merely an early morning response to a question asked on some sports message board. The asker should rely on the advice of his lawyer(s) and not this poster who is not responsible for the square root of crapola either way. In these matters, its usually best to remember free legal information is generally worth what is paid for it. So there.

[Taxman71]

Probate is very state-specific. In Oklahoma, you have to provide "notice" to all heirs at law to give them the right to challenge the will. However, actual notice is not required in Oklahoma. Instead, as stated above, you have to convince the court of your efforts, including publishing the notice per the statute and mailing to the last known address. However, Oklahoma would not stall an entire probate for an unknown heir. Even if the missing heir received a portion of the estate, it could be paid to the state's unclaimed property fund.

TulsaFireman: several things could happen depending on your will.

1. If a minor is to receive over $10,000 in property from the probate, a guardianship will have to be created (more expensive and worse than a probate usually) until the minor reaches age 18 and they get the whole amount at once. Note: even though parents of a minor have guardianship of the person, guardianship of their property must be via the court.

2. If your will contains a trust (coming into existence at your death), then the probate sends the property to the trustee to hold for the benefit of your minor child per the terms you set forth in the trust (which are virtually whatever restrictions you want).

A better alternative is to set up a revocable trust now. The trust terms will be exactly as you want with the same trust provisions otherwise contained in item 2 above. However, if you properly transfer your probate assets to your trust, no probate will be required and the whole "missing heir" issue or guardianship requirement will never arise. Furthermore, a revocable trust and accompanying durable power of attorney may prevent having to set up a guardianship for you in the event of an unfortunate event.

Either way, no trust will exist unless you specify prior to death.

Having done dozens of each, I would rather do 10 probates than 1 guardianship.

[TMcGee86]

Yeah it varies greatly from state to state.

Texas is similar to OK in that you provide notice by publication. There is no requirement to send out notice to random "blood" relatives. You do have to give notice to every beneficiary in the will though, they recently enacted that.

I would imagine the answer is some affidaivit stating you did your due diligence in attempting to contact them and showing the Court what you did. Then it's up to the Judge to approve it.