Where There is No Will, Kin Controls. But, Who is Your Kin?

The importance of having a last will and testament or a testamentary substitute has been repeatedly stated here and elsewhere. Failure to set up your own estate plan leaves the control of your estate to the default rules of the state specific intestacy statute. In some situations, the end result may not be horrible. For families with an uncomplicated family lineage, the pattern of inheritance will not likely stray from what most people put in place in a will. But, with more complicated families with children of multiple marriages, children born outside of marriage or the closest relatives being persons other than spouses and children, the path to completing an estate administration becomes much more complicated.


Under the intestacy statute, children born of a marriage and those born outside a marriage are not treated the same. Marital children will automatically be considered heirs of a deceased individual.   On the other hand, children born outside of a marriage (now called “non-marital” children under the New York Estates Powers & Trusts Law) and their rights of inheritance will depend on whether the deceased parent is a mother or father.   Non-marital children of a mother, like marital children, automatically inherit from their mothers.

This is not the case with inheritance from a child’s father.   To inherit from a non-marital father, a child must prove one or more of the following: that paternity was established by an Order of Filiation; the mother and father filed an acknowledgment of paternity; the father signed another document acknowledging paternity; or paternity is established by “clear and convincing evidence”. “Clear and convincing evidence” can include genetic information or evidence that the father “openly and notoriously” acknowledged the child as his own.   The latter can be proven by a variety acts taken by the father and shown in an affidavit of an uninterested party.

It should be noted that the above applies only to biological and adopted children; foster children and stepchildren are not considered children for purposes of intestate inheritance.

More Distant Relatives

In some intestate estates, neither a spouse nor children are living or exist. The estate of such decedents would then pass to the closest class of relatives still living.   New York intestacy law considers, in order, grandchildren, great grandchildren, parents, siblings, uncles and aunts, nieces and nephews, grandparents, 1st cousins and 1st cousins once removed as possible relative classes that can inherit an intestate estate.

Once the closest class of relatives is established, the claiming relative(s) must prove their relationship to the decedent by common blood relative. A family tree showing that either all higher classes of relatives are deceased or do not exist must be created and evidence such as birth, death and marriage records must be presented. Beyond proving kinship, a claiming relative must show that no other relatives exist of a higher or equal level of relationship. If there is a dispute as to who is and who is entitled to inherit, the court may order a kinship hearing.

In a probate proceeding (an estate administration proceeding where a will is submitted to the court), most of these steps are unnecessary. Sufficient notification of all distributees (persons who would inherit property under intestacy) and those listed in the decedent’s will shall suffice the court.   The less complex nature of a probate proceeding to an intestate proceeding provides an additional benefit to preparing an estate plan rather than leaving your estate to the complexities of intestacy.

Please contact info@levyestatelaw.com for more information.


Summer’s Here, And the Time Is Right, For Getting Your Estate Plan in Order!

Over the next few weeks, summer will usher in a fun-filled, relaxing three-month period where kids can say goodbye to their studies for the time being and adults can travel and enjoy everything the season has to offer. It would seem odd to think of this as the perfect time to work on your estate plan; in fact, with many companies offering summer hours and workloads generally lightening during the warm months, it is the perfect time to consider to get your estate plan in proper shape.

Where do you start? It all depends on what you’ve already done, but here are ten action items for you to consider while you’re making your vacation and travel plans:

  1. Have your initial planning documents drafted. You’ve been busy all year…and the year before that…and the year before that.   Taking the first step in getting your estate planning prepared may be the hardest, but once you begin, the process can be completed quickly and painlessly.   Initial documents include a last will and testament, a durable power of attorney and a health care proxy/living will.


  1. Review your existing documents to ensure they still fit your needs. Having an initial plan in place puts you ahead of most people, but that is only the starting point of the estate planning process.   Family, assets and health changes can affect what your wishes are. If you haven’t reviewed your documents recently, take the time to speak with your attorney to ensure that your wishes and intentions are still reflected in your documents.


  1. Fund your irrevocable and revocable trusts. Clients often forget that setting up a trust is a two-stage process.   First, the trust document is drafted to express how it will work and who will benefit from the assets. Second, the assets must be transferred into the trust. In particular, with irrevocable trusts, transfers should be made as soon as possible to avoid the imposition of the three-year rule if you die within three years of a transfer.


  1. Complete and/or update your beneficiary designations. Paid on death accounts and contracts such as retirement accounts, life insurance and annuities are amongst the easiest to claim after a loved one dies. Without the need to petition the court, these assets can be transferred quickly to the proper beneficiaries. However, without proper beneficiary designations, they can pass to the estate or to the wrong persons.


  1. Create or revise your assets list. Most estate attorneys, financial planners and other advisors will compile a list of your assets during the planning process, but the most accurate lists usually are self created. Updating or creating such a list will give you a better idea of where things stand with you and your family and can reveal that your assets have grown to the point where additional planning is needed.   Alternatively, in the event of your death, it can provide your heirs with a good roadmap of what assets need to be transferred and retitled.


  1. Review your life insurance. The amount, type and ownership of life insurance can change as you grow older and expand your family/assets. Many insurance agents provide audits of policies at no additional cost. Additionally, because life insurance is taxable only for estate tax purposes, changing the ownership of the policy to a life insurance trust is a great way to reduce the size of your taxable estate.


  1. Protect your family or small business. Business owners are often focused on the here and now and don’t take the time to consider what will happen to their business if and when they are no longer running it.   Many businesses lack the proper buy-sell agreements or even a proper organizational document to give co-owners and the owner’s family guidance over what happens to the business once the business owner leaves, retires or dies.


  1. Create a gifting plan. With the large increase to the federal estate tax exemption and the increased New York exemption, it might seem less important to consider gifting strategies. This is not true. For starters, individuals can now gift $15,000 (or $30,000 per married couple) to their beneficiaries every year. Additionally, through the use of trusts, the monies given to minors can be protected from waste and be available for usage for education and other expenses.   Finally, for those with estates nearing New York’s “estate tax cliff,” the lack of a New York specific gift tax continues to keep gifting as an important tool to reduce estate taxes.


  1. Consider Charitable Giving. For those with estate tax issues and philanthropic goals, setting up a structure to maximize your giving takes time and many state and federal approvals before you can begin giving. Summer gives you ample time to get the process started so that you can hopefully be ready to make contributions before the end of 2018.


  1. Understand your planning goals. Estate Planning attorneys and other advisors provide suggestions and advice based on what we know about the law and what others do.   But, without the input and understanding of what our client’s goals are, any plan we put in place will be incomplete.   With more time to contemplate your planning goals, you can help your advisors craft the right plan for you and your family.


Please contact info@levyestatelaw.com for more information