Staten Island Heir Finder Lawyer

One of the most important parts of estate planning is leaving instructions as to what should happen to your property once you have passed away. There are a number of ways to leave your loved ones your assets. A common way is by making a will. A will is a document in which you set forth who you would like to receive specific portions of your estate. For example, you can leave specific gifts to your spouse, children, siblings, friends or colleagues. You can even choose to leave gifts to your college, religious institution, favorite charity, or civic organization. Similarly, you can create a living trust and transfer property to it for the benefit of beneficiaries that you specify. If you pass away without properly disposing of your property, then the State of New York will take control of how your property will be distributed based on the laws of intestate succession. Unfortunately, there are some cases in which when it is time for your assets to be distributed, a beneficiary or heir cannot be located. This can cause a delay in closing your estate and make the job of your estate's executor or administrator more challenging. If learn more about what to do about a missing heir or how to avoid a missing heir problem contact an experienced Staten Island Heir Finder Lawyer who will know the best strategies for finding a missing heir.

How does a missing heir problem begin?

When you pass away, your property must be disposed of in way or another. The most comprehensive way of disposing of your property is through your will. Any property that is in your probate estate can be effectively distributed by a well-written will. Such property includes your home, other real estate, vehicle, jewelry, home furnishings, artwork, collectibles, clothing, bank accounts, and brokerage accounts.

If property is not in your probate estate, there are other laws that will be followed for the appropriate distribution of that property. For example, if you have a bank account with a payable-on-death (POD) designation, by operation of law when you pass away the person you designate will get the balance of the bank account. If you have a 401(k) plan with a designated beneficiary, that person will get the money that is in that 401(k) account when you pass away.

Any property that has not been otherwise disposed of will end up in your probate estate and will pass to your beneficiaries based on the terms of your will. In the absence of a will, your property will go to your heirs via intestate succession. Upon your death, your estate will go through a process called probate administration if you have a will, or estate administration if you do not have a will. At the end of that process your property will be distributed to your beneficiaries or heirs. If someone who is entitled to a portion of your estate is difficult to find, there will be a missing heir problem.

How does the probate process work?

When someone passes away before that person's property can be transferred to beneficiaries or heirs, the estate must first go through a process that is referred to as probate. It involves having a fiduciary called the executor or the estate administrator take several steps to wind up your estate, and ultimately distributing your assets. The entire process is overseen by a judge in the New York Surrogate's Court.

Before asset distribution can take place, the executor or estate administrator must first collect your assets and have them appraised. The next step is to pay all of your estate's debts including your funeral expenses, unpaid bills such as credit card bills and utility bills, valid claims against your estate, fees related to administering your estate and taxes. Once this is done, then the fiduciary has a good idea as to the value of your estate. This is essential as it is the only way to know what is available to distribute to beneficiaries or heirs.

The fiduciary will then file an accounting with the Surrogate's Court judge detailing all of the payments made from the estate along with any money paid into the estate. The judge will then close the estate and give the fiduciary permission to distribute the estate's assets.

The distribution part of the process should be straightforward. Part of the administration process is for each beneficiary, heir, or other interested party to be sent a notice that the decedent's estate is in the process of being settled. If someone cannot be found it is part of the job of the executor or the estate administrator to make a reasonable effort to find that person.

What steps will be taken to find a missing heir?

There are many reasons that an heir may be difficult to find. The missing heir may have become estranged from the decedent and other members of the decedent's family because of a disagreement. If that is the case, the missing heir may resist any effort to be found by the executor or administrator. It is also possible that over time the decedent and the missing heir simply drifted apart. This often happens as people age and their lives take different paths. A person may be difficult to be found because they have aged or suffered health problems that have caused them to become physically or mentally incapacitated to the extent that they have to rely on another person to handle their affairs. In still other cases, unfortunately, the missing heir may have passed away without the decedent being notified. Under New York law after 3 years and a diligent search a missing person is presumed to have died. NY EPTL § 2-1.7.

Regardless of the reason that the heir went missing, your executor should take advantage of the many resources that are available for finding people. In most cases an heir is not truly lost or missing. In such cases very little effort is involved in locating that heir. In other cases it may be a lot more difficult to find the heir. However, using resources such as the internet, publishing notices in newspapers, reviewing public records, searching genealogical databases, and contacting the Social Security Administration may provide clues as to the whereabouts of the missing heir.

What will happen if the beneficiary or heir is never located?

If someone cannot be found, the property could end up going to that person's heirs, the decedent's beneficiaries, or the State of New York.

In the case of the estate of a person who did not leave a will, if an heir cannot be found, then that person's inheritance may go to another one of your heirs based on an order of priority in New York's intestate succession rules. NY EPTL § 4-1.1. New York intestacy laws are very detailed and specific as to who can be considered an heir.

In the case of a missing or deceased beneficiary named in your will, depending on the terms of your will, that person's bequest may revert to your residuary estate and go to the person named as the beneficiary of your residuary estate.

The worst case scenario would be that if an heir cannot be located and there are no statutory heirs available, the property will escheat to the state-- another result that you did not intend.

How do I avoid a missing heir problem

Making a will that includes a residuary clause is a the best way to avoid the problems associated with a missing heir. When you make a will you are able to set forth who you would like to receive your assets upon your death. Most often testators name close relatives such as a spouse, children, grandchildren, parents or siblings. You can also name close friends, trusted employees or even organizations such as charities, religious institutions or educations institutions. Typically, when you name beneficiaries in a will it is because you have a close relationship with them and you are in touch with them. Thus, when you pass away, there is less likely to be a problem finding them.

When you do make your will, it is important that your executor has the contact information for each beneficiary. When your will is offered to the Surrogate's Court to be admitted to probate your executor is required by law to send notices to the beneficiaries mentioned in your will, heirs who were not named in your will, as well as other interested parties. Thus, it is important that your executor maintains updated information for your beneficiaries as well as you statutory heirs, and anyone else considered an interested party including:

  • Spouse
  • Children- Biological, adopted, adopted out, stepchildren, and children of predeceased children
  • Parents
  • Siblings- Whole and half-blood
  • Grandparents- Maternal and paternal
  • Aunts and Uncles- Children of predeceased aunts and uncles- maternal and paternal
  • First cousins once removed- Children of predeceased first cousins- maternal and paternal

Another strategy that will reduce the likelihood of a missing heir problem is to regularly review your will as well as other estate planning documents every few years. This will allow you to actively review the terms of your will, including who you name as your beneficiaries. If a named beneficiary has passed away you can remove that person from your will. If you have lost touch with a beneficiary, or had a falling out with a beneficiary, you can also reconsider leaving that person a gift in your will. By reviewing your will you eliminate beneficiaries that may be difficult to locate after your pass away.

When you revisit your will each year you can also update beneficiary contact information and give this information to your executor.

The process of probate or estate administration can be challenging and can take many unexpected turns. The problem of a missing heir will make the process even more complicated. It will also delay the process, including distributing assets to other beneficiaries or heirs. To help you navigate the process as efficiently as possible and to help you resolve problems that arise, contact the experienced attorneys at Stephen Bilkis & Associates, PLLC. We will help you find missing heirs and also help you address any other problems that arise during the administration of an estate. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations:

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