WHAT HAPPENS IN PROBATE WHEN THERE ARE UNKNOWN HEIRS?

During an estate proceeding, the petitioner for probate (probate is an estate proceeding when there is a will) or the petitioner for administration (when there is not a will) will have to supply to the court the names of the heirs of the decedent. So if Grandma dies and Grandpa died before her, then all her children are listed and if one her kids died with kids, then the grandchildren may have to be listed also.

Sometimes the courts will require the petitioner to provide a family tree affidavit. This would be an affidavit submitted by someone not related to the decedent like a neighbor who knows the family. Problems occur when there is not any known relatives or knowledge of the relatives in incomplete.

For example, and this happens frequently today when people are living to an older age, let’s say someone dies at 95 years old. Most of the siblings could have already died and possibly even some of the children. Further, the person could have been single, or with no children, or the spouse predeceased with no children, no aunts or uncles living, no siblings living, so the nearest relatives are first cousins that cannot be found.

If the petitioner alleges that any of the heirs of the decedent or others required to be cited are unknown or that the names and addresses of some persons who are or may be heirs are unknown,  in most jurisdictions, the petitioner must submit an affidavit showing that he or she has used due diligence in endeavoring to ascertain the identity, names and addresses of all such persons.

Compliance with this due diligence requirement is not intended to burden the estate with costly or overly time-consuming searches. Absent special circumstances, the affidavit will be deemed to satisfy the requirement of due diligence if it indicates the results obtained from among the following:

  1. examination of decedent’s personal effects, including address books;

(2) inquiry of decedent’s relatives, neighbors, friends, former business associates and employers, the post office and financial institutions;

(3) correspondence to the last known address of any missing heirs;

(4) correspondence or telephone calls to, or internet search for, persons of same or similar name in the area where the person being sought lived; and

(5) examination of the records of the Motor Vehicle Bureau and Board of Elections of the state or county of the last-known address of the person whose whereabouts is unknown.

In some probate proceedings, the court may accept, in lieu of the above, an affidavit by decedent setting forth the efforts that he or she made to ascertain relatives.

If after doing due diligence heirs still cannot be located, then in most jurisdiction a publication in a newspaper could be necessary to find heirs. Afterward, if no one comes forward or there are still unknown heirs, a court may appoint someone to represent the unknown heirs. And even if someone comes forward, the court may require a kinship proceeding to prove they are the heirs.

It can be complicated, time consuming and costly.  One way to prevent such a situation is to have the person list for an estate planning attorney the known heirs and their addresses when drawing a will and other estate planning documents.

For further discussion, feel free to contact me, Damien Bosco, Esq. at (212) 201-1908 or at dbosco@boscolegal.com. If we are not connected on LinkedIn and you have a profile on it, feel free to connect with me.