Kinship Hearings

Kinship Hearings 1In the instance of some one’s untimely and/or unexpected passing, specially when there is no valid will left behind, its my job as your Estate Administrator to manage your estate and distribute the assets to the proper heirs according to the laws of the state of New York. If the decedent has surviving life partners, kids, parents or other close relatives the process of determine the true heir is rather streamlined. Now there are also cases when there are only distant relatives; they are required to prove their relations to the deceased estate owner, this is known as a Kinship Hearing.

As your Estate Attorney it is my job that proper implementation of the will – when there is one – is achieved and all the inheritance is given to the rightful heirs and beneficiaries.

In contrast to a sole distributee hearing, in cases where the relationships of the distributees to the decedent are more distant than siblings or their issue, a more formal hearing—called a “kinship” hearing—probably will be required. The public administrator likely will be a party to such hearing, and formal rules of evidence will apply in what will be an adversarial setting, in the nature of a trial of disputed issues of fact. According to the section 207.25 of the New York Uniform Surrogate’s Court:

(a) Accounting proceedings. In all kinship matters, whether the hearing be held by the court or referred to a referee, proof must be completed by the party who seeks to establish kinship in an accounting proceeding within one year from the date fixed for a hearing by the court or the date of referral, or the party’s objections shall be dismissed and the monies deposited pursuant to CPLR 2601 for the benefit of unknown distributees.

(b) Administration or withdrawal proceedings. In all kinship matters, whether the hearing be held by the court or referred to a referee, proof must be completed by the party who seeks to establish kinship in an administration proceeding or withdrawal proceeding within six months from the date fixed for a hearing by the court or the date of referral or the petition shall be dismissed, without prejudice.

Kinship Hearings 300x225With kinship hearings, most often, having an indefinite outcome the court might impose a limited or restricted administration.  Under such circumstances, the court may limit or restrict the authority of the fiduciary to whom letters are issued. In an administration proceeding, restricting the fiduciary’s authority often occurs when a cause of action—usually an action for personal injuries (conscious pain and suffering) and/or wrongful death—exists on behalf of the decedent, the decedent’s estate or the decedent’s distributees.

The need for restricting the administrator’s authority stems from the fact that the damages in such action are unliquidated—that is, it is virtually impossible to determine in advance the probable amount of the recovery. Consequently, the court is unable to fix an appropriate amount for the administrator’s bond, and some other form of control is necessary to prevent any mishandling or improper distribution of estate funds.

The letters of administration granted under these circumstances simply will restrict the administrator to the prosecution of any such action, without authority to compromise or settle or to collect any proceeds from the action, thus effectively preventing the administrator from having actual custody or control of the funds. Where the action is the only asset of the estate, the administrator will receive “limited letters of administration.”

Where there are general estate assets in addition to the action, the administrator will receive “restricted letters of administration” and will have full authority to administer the general assets of the estate. A bond would be waived completely when limited letters issue; a bond covering only the general assets (unless dispensed with by the court) would be required for the issuance of restricted letters.

At the time the action is about to be settled or judgment is entered, the administrator must return to the surrogate’s court for a further order modifying or removing the restrictions previously imposed. Such proceeding is called a “compromise.” It is usually accompanied by, and takes the general form of, a voluntary accounting for the estate or for the asset being collected.

Another common situation where letters might be restricted would be where the estate assets include real property. Because it is impractical to require a bond on the full value of the property which, by definition, cannot be physically removed or disposed of, many courts protect such property in another fashion.

The real danger with real property is the possibility of transfer or alienation of title. Accordingly, letters of administration often include a special provision restricting real property transactions until further order of the court. Once the administrator has contracted to convey the property, the court, on further application, can make an appropriate order to require the filing of an additional bond, or such other action as may be necessary to adequately protect the estate.

Kinship hearing might also result in temporary administration. Temporary administration is a means of providing for the appointment of an estate representative when appointment of an executor, preliminary

executor or administrator, all of whom would have generally fuller powers of administration, cannot be made. In an intestate situation, delay may be encountered in ascertaining or acquiring jurisdiction over distributees. A temporary administrator can be appointed to act in the interim.

In a testate situation, the preferred interim representative, who can act prior to probate, is the preliminary executor. However, that office can be held only by the nominated executor of a propounded will. If the nominated executor cannot or will not act (e.g., the sole nominated executor has predeceased or renounced), any person interested in the estate may petition for appointment of a temporary administrator.

The powers of a temporary administrator are typically less extensive than those of an executor, preliminary executor or administrator. It is not uncommon for the court to limit or restrict temporary letters, especially in administration proceedings, to protect creditors and persons interested in the estate.