Glenn Stok helped his elderly aunt with her affairs in her final years, and writes about the social and legal issues he learned from it.
I discovered that courts might deny probate when there are no blood relatives. The following story of my experience will serve as a guide for you to know how to handle it if you have a similar predicament.
If you're listed as the executor in a will and are not blood-related, a probate court still needs to appoint you as executor. You'll have to jump through hoops to get the probate court to allow settlement of the estate.
Prelude to the Situation
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.
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 blood-related relatives who are not receiving an inheritance. They 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, and that could be difficult 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 would be blood-related. The court wants us to find them, so they have the option to dispute the will.
I know they don’t exist. I know that because my aunt and uncle never had kids. 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 might 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 significant cost involved in locating people who don’t exist. The court wants me to show that I did my due diligence to find these people. They do not allow me to act as executor of the will, and they do not allow me to distribute any inheritance until then. We can't sell her co-op either. Everything is frozen, including real estate property.
I asked my attorney if the court may never approve the will. He said he had seen a case where that had happened, and the State takes all the money.
Why Can't We 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?
Many people do that. I'm not saying it's legal. But it's not stealing either if one distributes the funds 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 we would have fulfilled her intentions. But there are cases where one can't do that. I quickly ran into a brick wall, as I'll explain.
Obstacles With a Last Will and Testament
Sometimes having a will isn't sufficient to immediately take care of the wishes of the deceased. In our case, we ran into a big snag. She had mortgage on her co-op. We needed to sell it quickly 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 board would not let me sell it without court approval.
A Good Lawyer Would Create an Appropriate Will
A well-written will considers potential obstacles. A good lawyer should know how to do that. Her lawyer could have put her co-op in a revocable trust with beneficiaries named in that 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 more manageable with a condo or a house. No board, or anyone, would 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 with her co-op board refusing to allow a trust, her lawyer could have protected her in some other way by planning ahead.
The co-op board needs to protect the value of the apartment. I can understand that. The board doesn'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 everything is done.
By the way, as I mentioned earlier, 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. That 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 can trace and discover their ancestry. That returned no results. My lawyer said, “That’s what we want! We can show the court that nothing came up in the search.”
The Court Had Additional Requests
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 asked that we advertise in specific publications that they requested, inviting anyone who might be a blood relative to make themselves known. We had to wait 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 approved my aunt’s will for probate, and I received the Letter Of Testamentary. That 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 in percentages. So I could not calculate the amounts until we received all the final bills.
There was some logic behind using percentages. Even without all the final bills, I could see that those amounts were in the same ballpark as the specific amounts left to others.
That is customary practice since there is no way to know exactly how much would be left to divide up for everyone.
Final Accounting to Pay The Bequeaths
Some of those 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 a lawyer to get the money from me. My attorney told me not to pay this person out of my own money since the courts may not allow me to reimburse myself.
It goes to show that one never knows who their true friends are. Sadly, 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 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 where the court never approves probate, and the State takes all the money. At least we just needed to wait another seven months, and we can settle things.
We still had to wait for the final bills from the New York Surrogate's Court, the NY Public Administrator, and the NY State Attorney General. My lawyer can then 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 approved 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.
An Estate Planning & Elder Law Attorney who reviewed my case gave a perfect explanation for my experience:
A family law attorney should not be practicing estate planning. That's how people wind up with a will when they should have had a trust. A will merely nominates executors; it does not appoint them. A court doesn't have to follow the nomination.
The purpose of the probate court is to ensure that all the assets are accurately gathered, creditors are paid, and the right people get their share. A properly drafted trust could have avoided all of that and accomplished the same thing.
Perhaps the worst part of incompetent planning is that loved ones don't find out about the mess until the person who created them is gone.
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
Glenn Stok (author) from Long Island, NY on June 30, 2011:
KK Trainor, thank you for your kind words. And sorry to hear about the loss of your grandmother. It's easier when you're blood related, as in your case. That's why you had no problems. But it's still a terrible lose.
KK Trainor from Texas on June 30, 2011:
Wow, what a story. I guess it depends on where you live and your family situation. I had a very easy time with my brother when our grandmother passed away. She had a trust and we divided everything between us with no problems. I guess we didn't have the vulture gene, and the planning she did made things easy for everyone. Sorry for your loss and the struggle that followed.
Glenn Stok (author) from Long Island, NY on June 27, 2011:
Anne, I'm sorry to hear you are having similar probate problems and my condolences on the loss of your sister.
Anne Harrison from Australia on June 27, 2011:
I know how you feel. Three years after my sister died, and getting the will sorted is a still a mess. The money goes everywhere, but to her children. Thanks for sharing your experience.