II. ADMINISTRATION PROCEEDINGS

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1 II. ADMINISTRATION PROCEEDINGS

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3 ADMINISTRATION PROCEEDINGS IN SURROGATE'S COURT by LORI J. PERLMAN, Esq. Of Counsel The Law Offices of Hugh Janow, LLP One Blue Hill Plaza, 10 th Floor Pearl River, New York Lori J. Perlman, Esq. All Rights Reserved

4 ADMINISTRATION PROCEEDINGS IN SURROGATE'S COURT 1. Administration Proceedings A. What Is Intestate Administration?....1 B. Who Are Decedent's Distributees? Distributees Persons Disqualified as Distributees... 8 a) Surviving Spouse... 9 b) Parent c) Children Identifying and Locating Distributees...12 a) Identifying Distributees b) Locating Distributees c) Affidavit of Due Diligence...14 d) Additional (and online) resource...15 e) Kinship Hearings C. Serving as Administrator Eligibility and Priority for Letters Ineligible Persons Method of Qualifying as Administrator Bond D. Where to Commence an Administration Proceeding: Jurisdiction and Venue E. How to Commence an Administration Proceeding The Petition for Letters of Administration Notice of Application for Letters of Administration Affidavit of Heirship Filing fee Completing Jurisdiction: Citation or Renunciation and waiver of service of process Concluding the Proceeding: The Decree II. Alternate Forms of Administration A. Small Estate Administration (a/k/a Voluntary Administration) What is Voluntary Administration? Who May Serve as Administrator? ii

5 3. How to Commence a Voluntary Administration Proceeding Administering the Estate Completing Voluntary Administration...41 B. Temporary Administration Petition Process Immediate Letters for Absentees Powers of the Temporary Administrator Accounting of the Temporary Administrator...43 C. Limited and Restrictive Letters General Limitations on Fiduciary's Powers Limited Letters where Conflict of Interest Prevents Fiduciary from Acting Limited Letters in Other Situations Lifting the Restriction SAMPLE FORMS NOTE: Many forms can be downloaded from the website of the Office of Court Administration at The complete set of official forms for the Surrogate's Courts (on Hot Docs) can be downloaded for a fee from the Trusts and Estates Section page of the New York State Bar Association at Administration, Temporary Administration, Limited and Restrictive Letters Certification pursuant to 22 NYCRR 130 and Cover Page (re Frivolous Papers) Attorney Certification of No Change (for use with Official Forms) Petition for Letters of Administration Citation Notice of Application for Letters of Administration Affidavit of Mailing of Notice of Application for Letters of Administration Notice to Consul General Decree Appointing Administrator Affidavit of Regularity Waiver of Citation, Renunciation and Consent to Appointment of Administrator Affidavit of Service of Citation Voluntary Administration Affidavit in Relation to Small Estate Administration Renunciation of Voluntary Administration iii

6 Amended Affidavit in Relation to Small Estate Administration Report and Account in Settlement of Estate Pursuant to Article 13, SCP A IV

7 ADMINISTRATION PROCEEDINGS IN SURROGATE'S COURT * 1. INTESTATE ADMINISTRATION A. What Is Intestate Administration? Intestate Administration is a procedure for collecting and distributing the assets of an individual who died without a will or without a valid will and who left personal property greater in value than $30,000, or whose estate has a cause of action for wrongful death or personal injury to the decedent regardless of the value of the estate.*' (If a person dies without a Will, real property passes by operation oflaw to the decedent's distributees - see discussion on the following page). It is generally advisable to review the assets of the estate in terms of real vs. personal property and testamentary vs. non-testamentary assets in order to determine whether an administration proceeding is necessary. In general, a person interested in the estate (including a creditor of the estate) petitions the Court to appoint as Administrator an individual who meets the statutory qualifications for that office. If the petition is granted, the Court issues Letters of Administration authorizing the individual to collect the decedent's assets and charging the individual with responsibility for paying decedent's debts and the expenses of administering the decedent's estate, and thereafter distributing the remaining assets to the decedent's distributees. Where a creditor seeks issuance of letters of administration to the Public Administrator, if you are representing a family member who is seeking letters it is advisable to prepare the administration petition and accompanying papers and file them at or before the return date of the creditor's petition, thus enabling you to report to the Court that a proceeding to appoint the proper individual as fiduciary has been commenced. Letters of Administration may also be sought where a purported will of a decedent is filed in Court but no proceeding for probate has been commenced within a reasonable amount of time, or where a proceeding was commenced but probate is not being diligently pursued. SCPA 1001(9). If there is a will on file with the court, the court may be reluctant to entertain a proceeding for Letters of Administration until the issue of the validity of the Will is resolved. This often This outline is not intended to guide the practitioner in contested administration proceedings. It is also not intended to cover the special rules covering decedents who died as a result of the terrorist attacks on September 11,2001. For those rules, see Winter 2003 NYSBA Trusts & Estates Law Section Newsletter at p 19, or the NovlDec 2002 volume of the NYSBA Journal, at p. 15. *' If the decedent has less than $30,000 in personal property and no cause of action for wrongful death or personal injury, and no real property, consider whether voluntary administration is appropriate. See Section II, A, infra. 1

8 requires a "reverse probate proceeding" in which the potential administrator seeks to establish that the Will on file should be denied probate. Note: If an individual dies intestate leaving only real property, judicial administration is generally not required because real property passes by operation of law to the decedent's distributees. Matter of Aleskas, N.Y.L.J., December 9,2002, at 34, col. 6 (SUIT ct. Queens Co); Matter of Inga, NYLJ, April 22, 1992, at 26 (Surr. Ct. Queens Co.); Matter of Offerman, 90 Misc. 2d 346, 394 N.Y.S.2d 119 (SUIT. Ct. Erie Co. 1977). In some cases, title companies or transferees would prefer that the transferor of the real property have some tangible authority for the conveyance. It is helpful to show the Court that there is some personal property that requires administration, even if it is a nominal amount ($50). Alternatively, the distributees may commence a proceeding under SCP A 2113 to have the court determine the distributees and their respective rights to inherit the real property. B. Who Are decedent's distributees? In an administration proceeding, it is important to identify the decedent's distributees, since they will be entitled to receive a share of the estate (EPTL and 4-1.1), will have to be served with process or notified ofthe proceeding (SCPA 1003, 1005), and will also be the persons who are entitled to serve as the fiduciary of the decedent's estate (SCPA 1001). (Remainder of page intentionally left blank) 2

9 1. Distributees Decedent's distributees, and their distributive share, as identified in EPTL 4-1.1, are: Ifth e ddt' ece en IS survive db 'y: A spouse and children or their issue * A spouse and no issue Issue and no spouse One or both parents and no spouse or issue Issue of decedent's parents and no spouse, issue or parent (i.e., decedent is survived by his or her brothers, sisters, nieces, nephews, and their issue) One or more grandparents or issue of grandparents and no spouse, issue, parent or issue of parents (i.e., decedent is survived by his or her Uncles, Aunts, first Ddt' ece en s d" IS tr"b 1 U t ees are: The spouse, children and their issue. The spouse takes the first $50,000 and % the remaining estate; the issue take the other 1fz of the remaining estate, by representation. ** The spouse, who takes the whole estate. Under EPTL 5-4.4, parents are deemed distributees for purposes of distribution of proceeds of a wrongful death action where no issue survive. The issue of the decedent, who take the whole estate by representation. The parent or parents, who take the whole estate. The issue of the decedent's parents, who take the whole estate by representation The grandparents or their issue are distributees. One-half passes to the surviving paternal grandparent(s), or if neither survive to The term "issue" here refers to the descendants in any degree from a common ancestor, including adopted children. EPTL ** The term "by representation" means that the property is divided into as many equal shares as there are (i) surviving issue in the generation nearest to the deceased ancestor which contains one or more surviving issue, and (ii) deceased issue in the same generation who left surviving issue. Each surviving member in the nearest generation is allocated one share. The remaining shares (if there are deceased issue who left issue) are combined and then divided in the same manner among the surviving issue of the deceased issue as if the surviving issue who actually took a share had predeceased the decedent without issue. EPTL

10 cousins or first cousins once removed). their issue, by representation, and the other half passes to the surviving maternal grandparent(s), or if neither survive to their issue, by representation, provided that if decedent was not survived by a grandparent or their issue on one side, the whole estate goes to the grandparent on the other side, or if the grandparents did not survive, to the grandparents' issue on the other side, provided that issue more remote than grandchildren of grandparents do not take any share of the estate if closer relatives survived (EPTL [a][6]); and PROVIDED, that if decedent is survived only by greatgrandchildren of grandparents (decedent's first cousins once removed), then 1fz of the estate passes to the paternal greatgrandchildren of grandparents, per capita, * and one-half passes to the maternal greatgrandchildren of grandparents, per capita (or all to one side if none on the other side survived). EPTL (a)(7). First cousins once removed take only where there are no closer relatives. Matter of Shumavon, 260 AD2d 140, 701 NYS2d 84 (2d Dep't 1999); Matter of Donahue, NYLJ, Nov, 28, 1994, at 27, col. 1 (Sur. Ct. NY Co.). Common Law Spouse: A common law marriage between a man and a woman that is valid in another jurisdiction will be recognized as valid in N ew York for purposes of determining whether the "spouse" is a distributee. Matter of Krasniqi, N.Y.LJ., Feb. 7, 2006, at 26 (Surr. Ct. Kings Co. 2006); Matter of Seekins, 194 Misc. 2d 422, 755 N.Y.S.2d 557 (Surr. Ct. Westchester Co. 2002); Matter of Libertini, N.Y.L.J., Nov. 2, 1999, at 36, col. 6 (Nassau County); Matter of Yo a You-Xin, 667 NYS2d 462 (3d Dep't 1998). The burden of proving the common law marriage is on the person asserting its validity. Matter of Watts, 31 NY2d 941,341 NYS2d 609. The term "per capita" means that each eligible person takes in his or her own right an equal portion of the property. EPTL

11 Domestic Partners and Same Sex Spouses Effective July 24, 2011, same-sex marriages became legal in New York State. Changes to the definition of "spouse" in the Domestic Relations Law appear to automatically alter the SCPA and EPTL to include same sex spouses, without any specific change required to the language of the SCP A and EPTL. The right of a surviving member of a same-sex couple to inherit where the Decedent died prior to the effective date of the Marriage Equality Law should be evaluated under the prior law, which did not recognize a samesex marriage entered into in New York as a valid marriage. A valid marriage entered into in another jurisdiction is recognized for some purposes in New York (see Godfrey v. Spano, 2007 Slip. Op , 15 Misc. 3d 809, 836 NYS2d 813 (Sup. Ct. Westchester Co. 2007) (upholding an executive order directing county agencies to recognize same-sex marriages validly contracted out-of-state); Godfrey v Hevesi, 2007 NY Misc. LEXIS 6589,238 N.Y.L.J., Sept. 5,2007 at 55 (Sup. Ct. Albany Co. 2007) (upholding a decision of the New York State retirement system to recognize a same-sex marriage entered into in Canada); Martinez v. Monroe, 50 A.D.3d 189, 850 N.Y.S.2d 740 (4 th Dep't 2008) (requiring employer to recognize validity of Canadian marriage to same-sex partner for purposes of employer-provided health benefits). And in 2011, the First Department upheld a same-sex marriage entered into in another jurisdiction. The Court upheld a Surrogate's Court determination that a Decedent who was married to a same sex spouse under the laws of Canada was survived by that spouse as the sole distributee, to the exclusion of surviving siblings, such that no citation was required to be issued to siblings. Estate of Ranft Ie, 81 A.D.3d 566,917 N.Y.S.2d 195 (1 st Dep't 2011). Half Blood relatives are treated in the same manner as full-blood relatives. EPTL 4-1.1(d). Adopted children take in the same manner as natural children, as currently provided in the Domestic Relations Law. DRL 117; Matter of Park, 20 AD2d 926, 249 NYS2d 703, rev'd on other grounds, 15 NY2d 413,260 NYS2d 169; see also Matter of Trainor, 45 Misc. 2d 316, 256 NYS2d 497 (distribution from adopted child to parents and their relatives). See DRL 117 for a complete discussion of whether a child may inherit from a parent or grandparent when the person who adopted the child is a close relative or stepparent. See also Matter of Johnson, NYLJ, Jan. 25, 2008 p. 25 (Surr Ct Kings Co) (daughter who was adopted by Aunt could still inherit from her mother. As long as adoptive parents was a descendant of the adoptee's natural grandparents, the adoptive parent does not have to be descended from the same grandparents as the decedent. Legislative history show that concerns where a child is adopted by strangers is not present when child is adopted by a close family member). 5

12 After-born children (children conceived during decedent's lifetime but born after decedent's death) take as if they were born during decedent's lifetime. EPTL (e). Legislative bills have been proposed that would add a new section to the EPTL to give inheritance rights to children conceived after the Decedent's lifetime if certain criterion were met. At least one case, Matter of Martin B, 17 Misc.3d 198, 841 NYS2d 207 (Surr. Ct. N.Y. Co. 2007), has held that a child born through in vitro fertilization with cryopreserved semen would be included within the term "issue" for purposes of taking a share of an inter-vivos trust; however, this question does not appear to have been addressed in an administration proceeding. Non-marital children (children born out of wedlock) are treated in the same manner as natural children of the mother, and are treated as natural children of the father if: (A) there has been a judicial order of filiation (i.e., determination of paternity) during the father's lifetime, or the father and mother executed and filed an acknowledgment of paternity pursuant to Public Health Law 4135-b; (B) the father has signed an instrument acknowledging paternity that meets the requirements specified in EPTL 4-1.2(a)(2)(B); (C) paternity is established by clear and convincing evidence and the child's father has openly and notoriously acknowledged the child as his own; or (D) a blood genetic marker test had been administered to the father which, together with other evidence, establishes paternity by clear and convincing evidence. (EPTL 4-1.2(a)). See, e.g., Matter of Marks, 16 Misc3d 334,837 NYS2d 531 (SUIT. Ct. Bronx Co. 2007) (open and notorious acknowledgment by all family members); Matter of Thayer, 1 Misc. 3d 791, 769 N'y.S.2d 863 (Surr Ct. Madison Co 2003) (paternity established where father openly and notoriously acknowledged child and DNA testing showed 99.98% probability of paternity); Matter of Cipriani, N.Y.L.J., Nov. 8,2001, at 19 (Surr. Ct. Bronx Co. 2001), aff'd, 298 A.D.2d 263, 748 N.Y.S.2d 735 (1 st Dep't 2002) (proof of paternity through admission in application to amend birth certificate); Matter of Sekanic, 705 N.Y.S.2d 734 (3d Dep't 2000). If the child was born when the child's mother was married to another man, the child will have to overcome the presumption that the child is the biological child of the person to whom the child's mother was married. Matter of Frazier, NYLJ, Mar. 24, 2008 at 27 (Surr. Ct. N.Y. Co) (presumption of legitimacy, while rebuttable, is one of the most formidable the law employs, and requires clear and convincing evidence to show that the presumption is entirely incompatible with common sense and reason); Laura WW v. Peter WW, 51 AD3d 211,856 NYS2d 258 (3d Dep't 2008) (husband is deemed the father of a 6

13 child conceived through artificial insemination during the marriage; provision in separation agreement stating that husband had no financial obligation to the child held void against public policy). Provided that the paternity of the non-marital child is established, if the non-marital child post-deceases, his or her distributees are treated in the same manner as distributees of a marital child. EPTL 4-1.2(b). The law of decedent's domicile will govern whether a nonmarital child is a distributee, regardless of the domicile of the child. Matter of Thomas, 367 NYS2d 182. Where the child is more remote than the immediate child of the decedent, the qualification of the non-marital child as a distributee should be determined according to the law in existence at the time of the decedent's death, not as of the date of death of the child's parent. Matter ofuhl, NYLJ, July 18,2006 (4 th Dep't). DNA Testing: Although EPTL had been interpreted as requiring that DNA testing be performed during the Decedent's lifetime ( See Matter of Hans is, 620 NYS2d 342 (1 st Dep't 1994», the Courts have liberally permitted DNA testing to proceed posthumously where the DNA sample was obtained prior to the Decedent's death. See Matter of Michael R, 793 N.Y.S.2d 710 (Surr. Ct. Rockland Co. 2004) (lock of decedent's hair provided by funeral home, together with decedent's toothbrush, provided sufficient DNA and admissible as clear and convincing evidence of paternity); Matter of Seekins, 194 Misc. 2d 422, 755 N.Y.S.2d 557 (Surr. Ct. Westchester Co. 2002) (discusses evidentiary matters re use of donated skin sample); Matter of Sandler, 160 Misc2d 955,612 NYS2d 756 (Sur. Ct. NY Co. 1994) (although exhumation of decedent's body to obtain DNA sample was denied, blood genetic marker test was allowed using DNA components of decedent's grandparents); See also, Matter ofnasert, 192 Misc. 2d 682, 748 N.Y.S.2d 654 (Surr. Ct. Richmond Co 2002) (DNA provided by decedent's twin brother); Matter of Davis, N.Y.L.J., p. 20 (SUIT. Ct. Kings Co. 2005) (Where affidavit of third party showed that the Decedent acknowledged paternity, Court permitted posthumous DNA testing). There is a split in the district courts concerning whether a child has to show open and notorious acknowledgment by the parent before the Court will order DNA testing, with the Second Department requiring such a showing (Matter ofpoldrugovaz, 50 AD3d 117, 851 NYS2d 254 (2d Dep't 2008) (child must show some evidence of open and notorious acknowledgement and that DNA testing is reasonable and practical under the circumstances» and the Fourth Department holding that no such showing is required (Matter of Morningstar, 17 A.D.2d 1060, 794 N.Y.S.2d 205 (4 th Dep't 2005) (child does not have to establish that the decedent acknowledged him or her before DNA testing will be ordered». In a subsequent case in Bronx County, Surrogate Holzman reviewed the law concerning posthumous DNA testing, and after discussing both Poldrugovaz and Morningstar, concluded that in a case where the DNA sample was already available and disinterment was not required, the Court would permit DNA testing without a showing of open and notorious acknowledgment by the Decedent. Matter of Williams, N.Y.L.J. Dec. 14,2009, at 26, col. 1 (SUIT. Ct. Bronx Co. 2009) 7

14 Under the right circumstances, the Court can direct DNA testing to establish maternity. Matter of Gaynor, 13 Misc.3d 331,818 NYS2d 747 *SUIT. ct. Nassau Co. 2006) (findong that an Order directing DNA testing to establish maternity is valid where the only persons who can provide samples are siblings or half-siblings). DNA testing is generally not determinative on its own, but serves as "clear and convincing" evidence of paternity if accompanied by such things as acknowledgment of paternity. Matter of Bonanno, 192 Misc. 2d 86, 745 N.Y.S.2d 813 (SUIT. Ct. N.Y. Co. 2002). However, one SUITogate has determined that DNA evidence obtained posthumously was clear and convincing evidence of paternity, and urged the legislature to change EPTL to so provide. Matter of Santos, 196 Misc. 2d 972, 768 N.Y.S.2d 272 (SUIT. Ct. Kings Co. 2003). Bills have been introduced in the legislature to make such a change in the law. 2. Persons Disqualified as Distributees In some cases, persons who would otherwise be considered decedent's distributees are deemed to be ineligible, such as where the relationship cannot be clearly established, or where the parental or marital relationship has been abandoned by the party who seeks to share in the estate. Where a person alleges that an otherwise qualified distributee is not eligible to receive letters, or has forfeited his or her right to a share in the decedent's estate, a status hearing is generally required to determine whether the alleged distributee is in fact a distributee. Such status issues are generally determined by the SUITogate or an attorney referee, either incident to the administration proceeding or, if not necessary to the determination of who will receive letters, at the time the estate is distributed. Generally, murderers are ineligible under the theory that a person may not benefit from his or her own wrongdoing. Matter of Covert, 97 N.Y.2d 68, 735 N.Y.S.2d 879,761 N.E.2d 571 (2001); Matter of Low, 22 A.D.3d 666,804 N.Y.S.2d 356 (2d Dep't 2005) (murdered disqualified as a matter oflaw); Matter of Kiejliches, 740 N.Y.S.2d 85 (2d Dep't 2002); Matter ofsteihler, NYLJ, April 20, 2006 at 21 (SUIT. Ct. Richmond Co 2006) (rejecting defense that surviving spouse was not culpable by reason of mental disease); Matter of Macaro, N.Y.L.J. Oct. 12, 1999, at 31, col. 7 (person who murdered decedent's sibling could not inherit); Mark v. Sabol, 180 Misc. 2d 855, 694 N.Y.S.2d 290 (Sup. Ct. N.Y. Co. 1999); Matter ofnicpon, 102 Misc.2d 619, 424 NYS2d 100; Matter of Hawkins, 213 NYS2d 188. See also Matter of Scott, N.Y.L.J., March 27, 2001, at 23, col 3 (SUIT. ct. Nassau Co. 2001). Since a person convicted of murder is also a felon, he or she would be ineligible to receive Letters of Administration. SCPA

15 a). Surviving Spouse EPTL provides that a spouse will be disqualified as a distributee, and rendered ineligible to receive Letters of Administration, where: There was in effect a decedent's death a valid, final decree or judgment of divorce, annulment, or declaration of nullity of the marriage or dissolution of the marriage on the grounds of absence. Matter of Dominguez, N.Y.L.J., Nov. 25, 2002, at 20 (Surr. Ct. Bronx Co 2002) (spouse who entered into marriage for purposes of obtaining green card was not disqualified as a result, but was disqualified on the ground that the Decedent never divorced from 1 st spouse, thus second marriage was void for bigamy). There is no disqualification unless the divorce proceeding reached judgment. Matter of Rabalais, N.Y.LJ., Nov. 19,2003, at 23 (Surr. Ct. Kings Co 2003) (no disqualification where divorce judgment was not rendered before decedent's death); Matter of Shephard, 671 NYS2d 561 (3d Dep't 1998). The surviving spouse procured an out-of-state final decree or judgment of divorce, annulment, or declaration of nullity of the marriage or dissolution of the marriage on the grounds of absence, which decree or judgment is not recognized as valid in New York (i.e., the surviving spouse actively but ineffectively sought to terminate the marital relationship)(see generally Greschler v. Greschler, 51 NY2d 368, 434 NYS2d 194 (1980) (foreign divorce recognized as valid in New York); Lacks v. Lacks, 41 NY2d 71, 390 NYS2d 875 (1976) (same); Matter of Holland, 150 AD2d 193, 540 NYS2d 803 (1 st Dep't 1989) (spouse who procured Haitian marriage barred from asserting its invalidity); Matter of Loeb, 77 Misc 2d 814,354 NYS2d 864 (Surr. Ct. N.Y. Co. 1974) (spouse procured foreign divorce invalid in NY); Matter of Chomsky, 101 NYS2d 60 (Surr. Ct. Kings Co. 1950) (same re mail-order divorce). A final decree or judgment of separation was rendered against the spouse and was in effect at decedent's death. A widow or widower who procures a separation judgment is not ineligible. Matter of Smith, 243 AD 348, 276 NYS 646 (4 th Dep't 1935). Reconciliation after a final decree or judgment does not reinstate surviving spouse's status, as such a decree or judgment can only be revoked in the manner prescribed in the Domestic Relations Law. See ~ Matter of Granchelli, 90 Misc. 2d 103, 393 NYS2d 894 (Sur. Ct. Monroe Co. 1977). The spouse abandoned decedent and such abandonment continued to the time of decedent's death. The criteria for abandonment are the same as 9

16 those that would be required to be proven if the parties were alive and one sought a divorce on grounds of abandonment. Matter of Ruff, 91 AD2d 814,458 NYS2d 38 (3d Dep't 1982). Abandonment requires proof of departure from the marital abode, without justification and with no intention of returning, and without consent of the non-abandoning spouse, which continues until the death of the decedent. Matter of Maiden, 284 NY 429, 31NE2d 889 (1940); Matter ofreifberg, 58 NY2d 134, 459 NYS2d 739 (1983); Matter of Prince, 36 AD2d 946,321 NYS2d 798 (1 st Dep't 1971), aff'd, 30 NY2d 512,330 NYS2d 61 (1972); Matter of Carmona, N.Y.L.J., May 12, 2000, at 30, col. 2 (SUIT. Ct., Bronx Co.); Matter of Sexius, NYLl, March 20, 1998, at 27, col. 6 (Surr. Ct. N.Y. Co.). Reconciliation may be shown to rebut a prima facie case of abandonment. Matter of Smith, 190 Misc. 285, 72 NYS2d 609 (Surr. Ct. Monroe Co. 1947). Where the parties executed a voluntary separation agreement, the agreement constitutes consent, which precludes any fmding of abandonment. Matter of Archibald, 19 Misc. 2d 705, 191 NYS2d 1021 (SUIT. Ct. NY Co. 1959), appeal dismissed, 10 AD2d 576, 200 NYS 317 (1 st Dep't 1960). A spouse who remarries or cohabits with another is generally found to have abandoned the first spouse (whether or not there was a valid separation or divorce from the first spouse). Matter ofbalso, 620 NYS2d 602 (3d Dep't 1994); Matter of Khabbaza, 174 Misc2d 82, 662 NYS2d 996 (Surr. Ct. Richmond Co. 1997) (abandonment found even though Iranian law permitted husband to have four wives). Abandonment is extremely difficult to prove due to the absence of testimony from persons who really knew what occurred, as one party is deceased and the other barred from testimony due to the dead man's statute. Matter of Sexius, NYLl, March 20, 1998, at 27, col. 6 (Surr. Ct. N.Y. Co.). Failure or refusal to provide support to a spouse where a duty to support existed and the spouse had the means to provide support, unless such marital duty of support was resumed and continued until the needy spouse's death. Matter of Bennett, 142 AD2d 578,530 NYS2d 38 (2d Dep't 1988). In addition, the spouse may have executed a voluntary waiver of his or her right to receive an intestate share or serve as administrator in a pre or post-nuptial agreement. Matter of Holtzman, N.Y.L.l., December 20,2002, at 20 (Surr. Ct. N.Y. Co.) (spouse was not disqualified by terms of antenuptial agreement where she had no independent counsel, no real opportunity to review the agreement before signing and no disclosure of assets); Matter oflaudadio, N.Y.LJ., March 21,2001, at 20, col. 4 (Kings County SUIT. Ct. 2001); Matter of Stegman, 42 Misc. 2d 273,247 NYS2d 727 (Surr. Ct. Bronx Co. 1964); Matter ofbanimowitz, 128 Misc. 518,219 NYS 763 (Surr. Ct.. Bronx Co. 1927). Because marital 10

17 agreements are strictly construed, an agreement must expressly waive the right to receive letters, and an agreement that only waives the spouse's right of election will not disqualify the spouse from being appointed as administrator. Matter of Schwartz, 94 Misc 2d 1024, 405 NYS2d 920, affd, 68 AD2d 841, 413 NYS2d 1023; Matter of Laney, 274 A.D. 250,80 NYS2d 421, affd, 298 NY 838; Matter of Rosenbaum, 27 Misc.2d 492,210 NYS2d 398, affd, 13 AD2d 745, 216 NYS2d 664 (separation agreement). b) Parent A parent of the decedent will be rendered ineligible to receive Letters of Administration and disqualified from inheriting if the parent failed or refused to provide for the child while the child was under 21 years of age, unless the parental relationship and duties were resumed and continued until the death of the child. EPTL 4-1.4; Matter of Baecher, 198 AD2d 221,603 NYS2d 504 (2d Dep't); Matter ofpessoni, 11 Misc. 3d 245,810 NYS2d 296 (Surr. Ct. Cortland Co. 2005) (father's lack of communication with child after age of 15 until child's death at age 30 met the standard for abandonment even though father had paid all court-ordered support); Matter of Gomez, N.Y.LJ., Sept. 5,2003, at 21 (Surr. Ct. Bronx. Co) (parent disqualified where court determined that father's long distance love and occasional visits with the decedent did not provide the natural and legal obligations of training, care and guidance); Matter of Arroyo, 710 N.Y.S.2d 492 (4 th Dep't 2000); but see Matter of Ball, 807 NYS2d 163 (3d Dep't 2005) (no abandonment where mother tried to keep father away from child, and failed to list father on birth certificate, and father provided financial support and tried to schedule visits with child, which were refused by mother). However, effective January 1, 2007, a biological parent who failed to provide support to his or her child will not be disqualified where the parent placed the child for adoption based upon either a false promise to arrange for the adoption of the child, or other fraud or deceit by a person or agency that results in the child not being properly placed for adoption. See N.Y. Senate Bill 43, ch. 285 of the Laws of2006. A parent who murders his or her child is also disqualified. Mark G. by Jones v. Sabol, 694 NYS2d 290 (Sup. Ct. NY Co. 1999). Legislative bills have been proposed that would disqualify a parent or other distributee if he or she was convicted of a sex offense where the decedent was the victim. Parents of Children Born by Medically Assisted Reproduction. Currently, there is no provision of the SCP A or the Domestic Relations Law concerning the status of 11

18 persons born through medically assisted reproduction involving donated sperm or eggs. Legislative bills have been proposed that would specify that unless there is an agreement otherwise, the donor of such reproductive material who is not the spouse of the person who gives birth to the child is not to be considered the child's parent. c) Children Non-marital children of a father who do not meet the statutory criteria for establishing paternity, as set forth in EPTL 4-1.2, are not considered distributees. See discussion of non-marital children under Section I (B)(I), supra. If a child does not have documentary proof that establishes paternity, a kinship hearing is often required. At such a hearing, the alleged child may offer witness testimony and documents that help to establish by clear and convincing evidence that the child was decedents' and that the decedent held the child out to others as his child. Testimony concerning statements made by the decedent to the child or another interested party who might gain from the testimony may be curtailed due to the dead man's statute if the administrator objects. In terms of inheriting through or from a non-marital child, in order for the child's father and paternal relatives to take an intestate share or receive letters, paternity must be established. Matter of Campbell, NYLJ, March 7, 1984, at 11 (Surr. Ct. NY Co.). Step-children and god-children do not qualify as distributees. Holding Corp. v. Tow, 60 Misc.2d 422, 302 NYS2d 706; Matter of Pfarr, 38 Misc. 223, 77 NYS 326. Adopted-out children (who have been adopted out of the family) do not qualify as distributees of their natural parents; they take as distributees of their adoptive parents. DRL 117; Matter of Trainor, 45 Misc.2d 316, 256 NYS2d 497. Legislative bills have been proposed that would provide that adoptive children do not lose the right to inherit or receive lifetime dispositions from his or her natural parents where the adoptive child maintains a relationship with the natural parent as a result of continuing living with the natural parent (such as where the child is adopted by a step-parent). The bill would codify existing case law regarding adoption by a step-parent. See Matter of Dana and Matter of Jacob, 86 N.Y.2d 651 (1995); Matter of Collura, 612 NYS2d 214 (2d Dep't). 3. Identifying and Locating Distributees If the decedent was survived by no distributees or only one distributee, or where the relationship of the distributees to the decedent is grandparents, aunts, uncles, first cousins 12

19 or first cousins once removed, proof must be submitted to establish (i) how each distributee is related to the decedent and (ii) that no other persons of the same or a nearer degree of relationship survived the decedent. Uniform Rule (c). The proof is usually in the form of an affidavit and is submitted together with the petition for Letters of Administration. Unless otherwise permitted by the Court, if only one distributee survived the decedent, the affiant can not be the alleged distributee's spouse or children. Uniform Rule (c). Generally, the affidavit of heirship required to be submitted in this instance will not require a statement that a diligent search was performed. However, as the relationship of the distributees becomes more remote, it is more difficult to find persons who are able to swear that there were no other family members. In such cases, or in any other case where the identity or whereabouts of a distributee are unknown, the Court will require an affidavit of due diligence (not necessarily from the affiant who is swearing to the family history). See Paragraph (c), infra. Accordingly, petitioner must attempt to identify and locate decedent's distributees. a. Identifying Distributees Interview decedent's relatives, friends and neighbors; doormen and landlord, review decedent's address book and mail; a family bible sometimes contains a list of births and deaths on the front or back cover; check the Surrogate's Courts for records of known family members - distributees may have been listed as interested parties; birth and death certificates - give the names of an individual's parents; marriage records; medical records that may list next of kin; church baptismal records often list god-parents who may have information; death notices in newspapers; if family has a relationship with a particular funeral director, funeral director's records; cemetery records (a relative may be paying for perpetual care of a grave) and tombstones of decedent's family; census records; immigration records; social clubs or religious organizations of which decedent was a member; and professionals (decedent's doctors, accountant, lawyer, etc.). Keep copies of any correspondence you send, and keep notes concerning any persons you contact, as you may need such information to document the scope and diligence of your search. If none of the above methods is successful, private investigative search firms and genealogical experts can be hired to perform a search for heirs. b. Locating Distributees Once the distributees are identified, it will be necessary to locate them. Although it is not essential to find distributees whose whereabouts or identity are unknown at the time letters are sought (since service of process may be dispensed with upon such distributees under SCPA 1003(4)), a diligent search will have to be 13

20 performed. Uniform Rule ( d). In addition, it will be necessary to conclusively establish the identity of the distributees before the estate is distributed. If distributees are not found at the time of an accounting, process will have to be served upon the unknowns by publication (SCPA 307), and their share of the estate will likely have to be deposited with the Commissioner of Finance until the lost heir is found and can commence a proceeding to withdraw his or her share (SCPA ). It is extremely helpful to have the lost heir's date of birth and social security number, as many persons with the same or similar name may be located in a search. In addition to the sources used in identifying the heir, the following sources may be helpful: decedent's old address books; old telephone directories; forwarding addresses at former residences; and advertisements in local newspapers. Government Sources include: Social Security Department, which will forward a letter prepared by an attorney to a missing heir to the last known address, but will not provide you with any information concerning the lost heir other than whether the individual is known to be dead. You should send a cover letter explaining your situation and including the missing heir's name, date of birth and social security number, and enclose the letter to the heir in an unsealed envelope. Also the Bureau of Vital Statistics or the Motor Vehicle Bureau may provide an address or forward a letter to the individuals address. An inquiry to a branch of the armed forces may also be of use if you are aware of the branch in which the missing heir served. Lexis-Nexis is also a good resource for conducting searches for the location of distributees once you have the name of the individual. You can search through the People Pages library, judgments and liens library, property ownership library, etc. c. Affidavit of Due Diligence - Uniform Rule Where a petition alleges that the identity or whereabouts of an individual who must be served with process is unknown, the application for letters must contain an affidavit showing that the affiant has used due diligence in endeavoring to ascertain the identity, names and addresses of all such persons. Uniform Rule ( d). Success is not the goal; the true measure of due diligence is showing that the appropriate avenues of investigation have been pursued, with or without results. The affidavit should attempt to indicate the names of the missing distributees, either first or last names, and their approximate ages, if available. Who provided the information on the missing heirs? When and where were they last heard from, if at all? Then list what efforts were made to locate the missing heir - who did affiant speak to? Where did affiant look, who were letters of inquiry sent to? What was the response? 14

21 Compliance with the rule is not intended to be costly or overly time-consuming. An amendment to Rule in October of 2000 provided the parameters of a "diligent" search as follows: "Absent special circumstances, the affidavit will be deemed to satisfy the requirement of due diligence if it indicates the results obtained from the following: a) examination of decedent's personal effects, including address books; b) inquiry of decedent's relatives, neighbors, friends, former business associates and employers, the post office and financial institutions; c) correspondence to the last known address of any missing distributee; d) correspondence or telephone calls to, or internet search for, persons of same or similar name in the area where the person being sought lived; e) examination of the records of the motor vehicle bureau and board of elections of the state or county of the last-known address of the person whose whereabouts is unknown. In probate proceedings, the court may accept, in lieu of the above, an affidavit by decedent setting forth the efforts that he or she made to ascertain relatives." d. Additional Resources An excellent guide to conducting a search is found in a New York Law Journal article prepared by former King's County Surrogate Bloom, among others, entitled "A Step-by-Step Guide to Conducting a Diligent Search." NYLJ, Feb. 8, 1994, at 1, column 1. A chart beginning on page 2 of the article provides contact information for several government agencies. Some genealogical researchers who have been used by counsel to the Public Administrator in the past include: Jaisan, Inc in New York ( Dennis Langel Investigations/Genealogy Research 15

22 Corp in Huntington, New York Laurie Thompson in New York (490 West End Avenue New York, NY 10024, ). * Online resources. There are many resources for locating heirs on the web, some more successful than others. Most are able to locate addresses and telephone numbers, and some provide more detailed searches for free. Non-public information is not on the web. Some sources for locating missing heirs (some free or partially free) include: and (for a New York city decedent) and for New York residents outside of New York City.; (Social Security Administration online); (identifies where to search for vital records, with a link to Ancestry.com's search engine); (search for current address, Social Security death index, census, vital statistics and links to other sources); and (search for current addresses in US and conduct reverse telephone directory searches); (public information search); (offers many free searches and locate searches, DMV driver & vehicle searches, telephone record searches, financial & bank searches, and criminal & property record searches); (surname search, with a links to many other web pages and About.com's genealogy page); list of genealogical webpages); (another list of web pages); (provides ability to track people who have moved, changed their names, addresses or web pages) e. Kinship Hearings At the beginning of an administration proceeding, a kinship hearing may be required when a remote distributee claims priority over the Public Administrator Note that the author has no personal knowledge of these genealogists and thus is not in a position to vouch for their performance. 16

23 to act as administrator of the estate. Kinship hearings are similar to status hearing, except that in the former the identity of all of decedent's distributees is determined, and in the latter the status, or standing, of one distributee is determined (i.e., whether a spouse is disqualified, or non-marital child is a distributee). Kinship hearings are also held at the accounting stage of an administration (when letters have been issued to the Public Administrator, before distribution of the estate) and when an alleged distributee seeks to reclaim assets that were deposited by the Court with the commissioner of finance (i.e., where no distributees were found, or where alleged distributees were initially unsuccessful in establishing their relationship to the decedent and entitlement to the estate). Where the alleged distributees are cousins, and often when alleged distributees are aunts, uncles, nieces or nephews, a kinship hearing is required, either at the time letters are sought or at the time the Public administrator seeks to distribute the estate assets. A kinship hearing is generally not required when decedent is survived by a spouse, issue, parents or siblings. At the hearing, the alleged distributees must submit documents and testimony that establishes (i) that the claimant and the decedent share a common ancestor, (ii) that there are no other distributees of a closer degree of relationship to decedent who survived the decedent (i.e., testimony from friends and other relatives that the decedent did not have any children, natural, adopted or non-marital, who survived, etc.), and (iii) that there are no other distributees with an equal right to inherit (referred to as "closing the class"). Typical documents include birth, marriage and death certificates; school, baptismal, hospital, church, court, army, motor vehicle, Veterans Administration, Social Security, immigration and census records, family bible (pedigree document), funeral home records, and court documents, including probate or administration documents and guardianship documents. See CPLR 4518,4526,4539,4540,4542,4543. Witnesses, including alleged distributees themselves, may testify as to family history that has been transmitted from one generation to another if the testimony meets the pedigree exception to the hearsay rule (i.e., the person who originally made the statement concerning the family relationship is dead and unable to testify him or herself, the declaration was made at a time the declarant had no motive to lie, and the declarant was related to the decedent by blood or marriage). See Richardson on Evidence, through Pedigree statements may also be contained in documents, such as the family bible that has a list of births and deaths in the cover. Interested parties may not testify concerning transactions with the decedent if an objection is made to the testimony. CPLR 4519 (the "dead man's" statute). However, in Bronx county the dead man's statute is not applied; all testimony is permitted and the court accords potentially self-interested testimony the appropriate weight. Certain presumptions assist in proving kinship, such as the presumption of marriage (Hynes v. McDermott, 91 NY 451 (1883); Smith v. 17

24 Smith, 194 AD 543; Matter of Macklin, 82 Misc 2d 376,371 NYS2d 238 (Sur. Ct. NY Co. 1975)); legitimacy of children born in wedlock (Matter of Findlay, 253 NY 1 (1930); Matter of Dugro, 287 NY 595; Hynes v. McDermott, 91 NY 451 (1883); Matter of Anonymous, 192 Misc 359, 77 NYS2d 121 (Sur. Ct. Monroe Co. 1948)); death after five years absence (EPTL 2-1.7; SCPA 2225); and presumption that person who would have been 100 years old at the date of decedent's death presumed to have predeceased the decedent (Young v. Schulenberg, 165 NY 385,59 NE 135 (1901); Matter of McMahon, 104 NYS2d 1020 (Sur. Ct. Queens Co. 1950). The burden of proof in a kinship hearing is on the party claiming to be a distributee. Almost always, the Public Administrator is a party to the kinship hearing. It is the Public Administrator's responsibility to identify the decedent's rightful distributees (Matter ofullerich, 178 Misc.2d 62, 677 NYS2d 913 (Sur. Ct. Nassau Co. 1998)), and counsel to the Public Administrator is often quite helpful in proving kinship at the hearing. At the conclusion of the hearing, the court renders a decision determining who the decedent was survived by, i.e., who are decedent's distributees, and the share of the estate to which each is entitled. Note that when the identity of kin is to be determined in a kinship hearing, proof must be completed by the party seeking to establish kinship within six months from the date fixed for a hearing by the Court or the date of referral to a court attorney referee or the petition for administration will be dismissed, without prejudice. Uniform Rule C. Serving as Administrator 1. Eligibility and Priority for Letters Letters of Administration will be issued to the persons specified in SCPA 1001, in the order of priority set forth in the statute. This order of priority is mandatory: letters must issue to those persons who are eligible and willing to accept them (Matter of Kelly, 238 NY 71), unless the eligible persons all agree to designate someone else to serve. Unless there is agreement between the parties, the Surrogate has no discretion to alter the priority set forth in SCPA 1001, except that the Surrogate may select one or more distributees to serve where the distributees have equal priority. The persons listed in SCP A 1001 must be adult and competent and have the relationship listed in the statute, but must also be distributees (i.e., decedent's parents can not serve if decedent was survived by a spouse and/or issue, even if the spouse and issue decline to serve; the Public Administrator would be appointed in that situation. See. E.g., Matter of McCarthy, 269 AD 145,54 NYS2d 591, affd, 269 NY 987.). 18

25 It is important to remember that a person with priority may designate a non-distributee to serve in his or her place. Thus, if the person with priority renounces, letters need not be granted another eligible distributee with lower priority or to the Public Administrator. The priority for letters among distributees (SCPA 1001) is as follows: a) Surviving spouse - Has the highest right to serve, even if another would perform better as administrator. Matter of Pascal, 20Misc2d 337, 152 NYS2d 185 aff'd, 4 AD2d 941. A disqualified spouse may be able to serve as administrator as the guardian of his or her minor child. Matter ofpoitata, 89 Misc 2d 663, 392 NYS2d 221. b) Children In a contested proceeding for letters of administration, letters issued to decedent's son, as he had priority. Matter of Hiralla1, N.Y.LJ., Sept. 26, 2002, at 25 (SUIT. Ct. Kings Co). c) Grandchildren d) Mother or father e) Brothers or sisters The rights of decedent's brothers and sisters to serve is superior to that of issue of a deceased brother or sister. Matter of Governor, 23 Misc 2d 994, 203 NYS2d 511. f) Any other distributee, with preference among them given to persons entitled to the largest share in the estate, provided that (i) letters may be granted to one or more persons who are equally eligible, and (ii) if the only distributees eligible to serve are issue of grandparents, other than aunts or uncles, on only one side of the family, letters shall issue to the Public Administrator instead of the distributees.* See Matter of Pearsall, 191 Misc. 2d 66, 740 N.Y.S.2d 605 (SUIT. Ct. Nassau Co. 2002) (where paternal cousin was entitled to 50% of decedent's estate and 5 maternal cousins were collectively entitled to the other 50% of estate, paternal cousin had priority for letters since she had the largest share in the estate, For more on letters to aunts, uncles and cousins, see Matter of Drumheller, 163 Misc2d 760, 622 NYS2d 196 (Sur. Ct. NY Co. 1995); Matter of Giganti, NYLJ, Jan. 24, 1994, at 29, col. 5 (Sur. Ct. Bronx. Co.). 19