When heirs of a decedent are identifiable but cannot be located, they are referred to as heirs withwhereabouts unknown.
When a person passes away in New York without any immediate family, it may not be clear whom the heirs are. These individuals are referred to as unknown heirs.
Heirs with Whereabouts Unknown – Obtaining Jurisdiction
When a person petitions the Surrogate (e.g. to probate a will or commence an administration proceeding) but is unable to locate all the heirs, the Court requires the petitioner to conduct due diligence in an effort to locate the heirs. This jurisdictional requirement is not meant to overly burden the estate with costly and time consuming searches. Several factors are taken into account when determining the required level of diligence including the size of the estate, the resources on hand, and the heirs’ interest in the estate.
As a general guide, the Court Rules of New York City (NYCRR §207.16(d)) state that due diligence will be deemed satisfied if the petitioner conducts the following searches:
Examination of the decedent’s personal effects, including address books;
Inquiry of the decedent’s relatives, neighbors, friends, former business associates, employers, the post office and financial institutions;
Correspondence to the last known address of the missing distributee;
Correspondence or telephone calls to, or internet searches for, persons of same or similar name in the area where the person being sought lived; and
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.
If the Surrogate is satisfied that the appropriate level of due diligence was reached and the current whereabouts of an heir cannot be ascertained, the Surrogate will direct that jurisdiction be obtained over such missing heir by alternate means, usually citation by publication. This consists of publishing the citation in a newspaper specified by the Surrogate. The details of this requirement are dictated by the Surrogate through an Order for Publication.
When there are heirs with whereabouts unknown, the Surrogate usually appoints a Guardian ad Litem to represent the interests of such heir or heirs. The role of the Guardian ad Litem is to step into the shoes of a missing heir to ensure that his or her interests are adequately protected.
Once jurisdiction is obtained over the missing heirs and a Guardian ad Litem is appointed, the petitioner may be permitted to proceed with the application (e.g. probate petition, administration petition, etc.).
Persons with Whereabouts Unknown – Where does the money go?
The issue of missing heirs may arise in several different proceedings in Surrogate’s Court. However, the petitioner must demonstrate a diligent effort to locate the heirs before the Surrogate will permit the petitioner to obtain jurisdiction over such heirs by publication. Jurisdiction is required over missing heirs in all proceedings in which the missing heir is a necessary party.
Once the Court is satisfied that jurisdiction was properly obtained over all necessary parties and any missing person’s interests have been adequately protected, the Court will permit the proceeding to continue. However, if a missing person is entitled to share in the assets of an estate, then the Court will direct the estate representative to pay the missing person’s share over to the State as abandoned property if the missing person is not located within a certain time. Once funds are turned over to the State, they are not lost but merely “on deposit”. The missing person could surface and claim the money (as could the missing person’s heirs) but an additional court order is required.
Unknown Heirs – Obtaining Jurisdiction
In any proceeding where the decedent’s heirs are unknown, the petitioner is required to use due diligence (see above) in searching for the unknown heirs. If, after a diligent search for the heirs, they cannot be identified, then jurisdiction may be obtained over the unknowns by serving a citation upon the New York State Attorney General. The Surrogate will likely appoint a Guardian ad Litem. The role of the Guardian ad Litem is to step into the shoes of a missing heir to ensure that the interests of any such heirs are adequately protected.
Unknown Heirs – Where does the money go?
Similar to estates with missing heirs, estates with unknown heirs present the question of what to do with the assets. If no heirs are identified, or if the identified heirs cannot prove they are the only heirs of the decedent, then the estate funds are placed on deposit with the New York State Comptroller and withdrawal of such funds requires further order of the Surrogate.
With unknown heirs no distribution can be made until it is proven to the Surrogate’s satisfaction that all the heirs have been identified. An exception to this rule is where it is proven that all heirs have been identified on one side of the decedent’s family but not on the other (i.e. maternal family v paternal family; applies in estates where heirs consist of grandparents, aunts/uncles, or cousins). In such cases, the estate may be split in two parts: one half for the maternal side and one half for the paternal side. Distribution of one half of the estate may be made to the heirs that have proven kinship on their side of the family. The other half will be placed on deposit with the Comptroller.
Once funds are placed on deposit with the New York State Comptroller, they are not lost but merely “on deposit”. After 3 years from the decedent’s date of death, the standard of proof for establishing that no relatives of the decedent exist, other than the known heirs, is reduced to “due diligence”. In other words, prior to the 3 year mark, the alleged heirs must prove their relation to the decedent and also prove that no closer relatives exist. After the 3 year mark, the alleged heirs must still prove their relation to the decedent. However, with respect to proving that no closer relatives exist, they only need to show: 1) that due diligence has been conducted in trying to identify closer relatives; and 2) that no closer relatives have been located. Upon presentation of these facts, the Surrogate may issue an Order directing the funds on deposit be released to the heirs who have proven their kinship.
The process of proving kinship or conducting due diligence may require the use of a professional genealogist. In making this determination, several factors should be considered including: 1) the particular proceeding; 2) the standard of proof; 3) the size of the estate; 4) the client’s ability to establish kinship on his or her own versus the ability to pay for genealogical research; and 5) the existence of disinterested parties with personal knowledge of the family tree who are willing to testify in court. This list is not exhaustive and should be carefully considered with your estate attorney.