In this episode, Tim talks about the search for lost heirs and why avoiding probate may be prudent.
Podcast Transcription:
WRVO Producer Mark Lavonier:
This podcast is part of the series Estate Planning Pro Tips, hosted by attorney Tim Crisafulli of Crisafulli Estate Planning and Elder Law P.C., an estate planning, probate and elder law firm serving clients throughout central New York. A former school teacher, Tim explains complex legal subjects in an easy-to-understand way. The commentaries focus on the central aspects of estate planning, such as wills, trusts, asset protection, long-term care, and probate. And now here's Tim.
Tim Crisafulli:
People are often surprised to learn that even if you have a will, there are certain people who must be contacted and given the opportunity to object, even if they are not actually named in the will.
When a person dies and assets pass through the estate, the decedent's next of kin have the right to contest the last will and testament that is offered for probate. In New York, the next of kin is defined as the decedent's spouse and children, including children of any predeceased children, that's grandkids.
If none, then parents. If none, then siblings, including the descendants of any predeceased children. If none, then nieces and nephews. If none, then first cousins, including the children of any predeceased first cousins. And finally, if none, then first cousins once removed.
That's a complicated list, but the concept is clear. Your next of kin have a legal right to object to your will, and they must be given the opportunity to do so. As you can imagine, an estate administration gets quite complicated when long-lost relatives must receive notice and an invitation to contest a will in court.
Where next of kin cannot be identified or found, the court requires due diligence in trying to locate them. This requires an extensive search of cemetery and marriage records, telephone books or online phone directories, and conversations with other relatives and neighbors. It also requires an internet search and a review of records from surrogates courts, the military, the Bureau of Immigration and Naturalization, the Social Security Administration, the Bureau of Vital Statistics, the Department of Motor Vehicles, the Bureau of the Census and City Directories.
The cost of a diligent search can be enormous, and the added time required to complete it can add many months to an estate administration. If all efforts fail and the court is satisfied that all reasonable attempts have been made, then it may allow a legal notice to run in an area newspaper as one final attempt to reach unknown or unfound relatives.
Proper estate planning can avoid this mess. If an individual knows that a search for next of kin will likely be troublesome, that person should consider an estate plan that avoids probate altogether. This can often be accomplished with some combination of asset titling, beneficiary designations, and lifetime trusts.
