Probate of Will When There Are No Blood Relatives (Based on Personal Experience)
I discovered that courts may deny probate when there are no blood relatives. This article is a detailed accounting of what needed to be done when my aunt died. She was a Holocaust survivor, but the same legal issues apply to anyone.
I was related to my aunt only by her marriage to my father's brother. Since I was not blood related, the probate courts insisted that I prove there were no living blood relatives. Since they were killed in the Holocaust, and no records were available, this was not an easy task.
If you are named as executor in a last will and testament, it is not valid until a probate court actually appoints you as executor. If you are not blood related, you'll have to jump through hoops to get the probate court to allow settlement of the estate.
The following story describing my experience will serve as a guide for you if you have a similar predicament.
Since my sister and I were only related to our deceased aunt by marriage, the New York Surrogate's Court, the Public Administrator, and the Attorney General had to get involved.
What's the reason for this? The courts want to protect anyone who is blood related but is not included to receive an inheritance. By law blood related relatives who are not receiving an inheritance need to be given a chance to dispute the will.
But what if they don't exist? The court doesn't know that, and it gets costly when blood related relatives are no longer alive because they were killed in the Holocaust! We have to prove it, even if death records are unavailable because all papers were confiscated or destroyed.
You might ask, “Wouldn’t the court expect that they are dead already since my aunt herself was 98 when she died?”
I asked that same question. The problem is that those relatives may have had children and the children are also blood related. The court wants them to be found and given a chance to dispute the will.
I know they don’t exist. I know this because my aunt and uncle decided not to have kids. They had a desire to travel often and having children would have delayed that some 20 year or so. As for siblings, my aunt’s only sister married a man who was killed by the Nazi’s before they could have had any children.
So, “pretty simple” you say.
WRONG!!! The courts still want proof. There was no death certificate to prove her sister's husband's death. The court did not accept this. My attorney told me that too many people took advantage of the Holocaust to game the system.
There is a huge cost involved with locating people who don’t exist. The court wants me to show that I did my due diligence to find these people. Until then, they do not allow me to act as executor of the will and they do not allow any inheritance to be distributed. Real estate property can't be sold either. Everything is frozen.
I asked my attorney if it is possible that the court never approves the will. He said he has seen a case where that had happened, and the state takes all the money.
Why Can't We Just Close Bank Accounts Before Obituary Listing?
Why couldn’t I just take the money out of her account before the bank saw a published death notice?
That’s what many people do. I'm not saying it's legal. But it's not stealing either if the funds are distributed according to the will.
Then there would be more money to pass around as well, without any courts or lawyers getting involved and taking their share. Not to mention the cost of genealogy searches and advertising for blood relatives to come forward, as requested by the court.
Yes, that would have avoided the nightmare and her intentions would have been met as per her expectations! But there are cases were one can't just do that. I quickly ran into a brick wall, as I'll explain.
Obstacles With a Last Will and Testament
Sometimes having a last will and testament isn't sufficient to immediately take care of the wishes of the deceased. In our case we ran into a big snag. She had a co-op with a sizable mortgage. We needed to sell it quick to avoid further payments.
That mortgage helped her live in her apartment and pay for full-time elder care aides for many years, but the lawyer she trusted to write her will had left that co-op unresolved. The co-op board would not let me sell it without court approval.
A well-written will considers potential obstacles. A good lawyer should know how to do that. I am sure her lawyer could have put her co-op in a revocable trust with beneficiaries named in the trust.
"Revocable" means that she has control over the property in the trust as long as she is alive. Then it goes to the beneficiaries without going through probate. Co-ops have to approve that, but her lawyer never suggested it to her.
It’s easier with a condo or a house. No board, or anyone, is going to deny someone the right to set up this kind of protection. The problem with a co-op is that one does not own real estate, they only own shares in the property.
Even if her co-op board refused to allow a trust, her lawyer could have protected her in some way. After all, he was also Jewish and should have known the issues I just explained about the Nazi's confiscating papers.
The co-op needs to protect the value of the apartment. I can understand that. They don’t want to take a chance that someone who might contest the Will would come forth later after someone else buys the apartment. That’s why they want a court to oversee everything.
Hiring a Probate Attorney
I couldn’t just take the cash out from her bank, sell the apartment, pay off the mortgage and disburse payments to her bequeaths as she had intended. I had to hire a lawyer to get court permission to let me do all these things.
The one I hired was an estate attorney with a specialty in New York probate. The one who wrote my aunt’s will was only a family attorney.
My lawyer had to present our case to the court for three reasons...
- The court had to give me permission to sell the co-op.
- The court had to assign me as executor (even though the will indicated that).
- The court had to approve probate.
The Public Administrator and Attorney General Get Involved
In New York, the New York Surrogate's Court handles these affairs.
The court assigned the NY County Public Administrator and the NYS Attorney General as Guardians to look over everything I do. Each one gets their cut after all is said and done.
By the way, even though the will says I am to be the executor, I am not until the court says I am.
One of the first things my attorney did was go to court to convince them to give a temporary order to allow me to sell the co-op so we can pay off the bank. After a few court sessions he won that approval, but it was limited to selling the co-op and paying only the bank.
Due Diligence Searching the Family Tree
I soon found out that since I was not blood related the court would not grant the rights so easily. This was a time consuming affair, with repeated requests from the court for me to do research and provide additional information.
With each request my attorney guided me with how to respond to the court.
I had to show the New York Surrogate's Court that I did my due diligence in finding any existing blood relatives by searching her genealogy.
I traced her family tree via ancestry.com, a site where one's ancestry can be traced. This returned no results. My lawyer said, “That’s what we want! We can show the court that nothing came up in my search.”
That didn’t satisfy the court however. They wanted proof that my aunt’s sister is no longer alive. That part was easy. My aunt had saved her sister's death certificate.
However, the court then wanted proof that her sister didn’t have any children who might contest the will. She had married a man who was killed in the Holocaust before they had a chance to have children. The Nazis destroyed those records.
With the advice of the Austrian Consulate, I searched the Austrian National Library and Austrian State Archives. No other siblings or offspring were found and I kept records of all my work to show the court.
Okay, even that was not enough. The court requested that we advertise in specific publications that they requested, asking anyone who might be a blood relative to make themselves known. We had to several weeks for anyone to respond, so everything was on hold again.
After that the court decided to interview the attorney who wrote the will. They wanted to be sure the witnesses he used actually saw her signing the will so they could testify to the fact that my aunt was in sound mind.
Month after month went by with additional requests and more delays.
Finally Getting a Letter Of Testamentary
Finally after nine months the New York Surrogate's Court finally approved my aunt’s will for probate and I received the Letter Of Testamentary. This officially appoints me as the executor of the estate as of the date of that letter.
I was instructed that I could write checks to my aunt's friends to whom she had left specified amounts. However, some of them were listed with percentages, which could not be calculated until all final bills were received.
I could see that there was some logic behind using percentage amounts. Even without all the final bills I already could see that those amounts were in the same ballpark as the specific amounts that were left to others.
This is customary practice since there is no way to know exactly how much would be left to divide up.
Final Accounting to Pay The Bequeaths
Some of those who were listed with percentages and who expected money immediately will be disappointed.
One of them didn’t understand why she had to wait and she even hired an attorney. I was instructed that I should not even consider offering to pay this person out of my own money as the courts may not allow me to reimburse myself.
It goes to show that one never knows who their true friends are. It's sad that we discover this after death.
My attorney said we also needed to give any unknown debtors a chance to send final bills. By law this waiting period has to be seven months from the date that the court appointed me. That already took nine months just to get that appointment.
Anyway, we were lucky I guess. As I mentioned earlier, there are cases were the court never approves probate and the State takes all the money. At least in our case we just needed to wait another seven months and things can be settled.
We still have to wait for final bills from the New York Surrogate's Court, the NY Public Administrator and the NY State Attorney General before my lawyer can prepare the final accounting of what's left so that the percentage amounts can be calculated and distributed to those bequeaths.
After another seven months all bills were paid and the court gave approval to our final accounting. That's one and a half years since her passing!
My attorney said we could now prepare an accounting to submit to the beneficiaries who get a percentage of what's left so they can sign an approval.
We had to wait for each of them to return their approval papers. If one is delayed for any reason, we simply had to wait. The checks can only be written and sent out once our attorney has received all the approvals.
Total time from death to settlement: One year and eight months.
This content is accurate and true to the best of the author’s knowledge and is not meant to substitute for formal and individualized advice from a qualified professional.
© 2011 Glenn Stok