Understanding Who A Distrubtee Is and What Role They Play in an Estate Matter
If you have visited Surrogate’s Court for information, or called an attorney’s office to inquire about your case or about a form you received in the mail, you were probably asked “who are the decedent’s distributees?” In other words, who are the heir-at-law in line to inherit the deceased’s estate? Often, people think that being a sibling or a parent automatically qualifies them as an heir. This is not true. A distributee, whether alone or with a number of other distributees, is an entitled party pursuant to New York law that will inherit the decedent’s estate if there is no will or the person that would have inherited had the decedent died without a will.
Identifying the Distributees
When someone dies without leaving a last will and testament, the New York Estates, Powers and Trusts Law (EPTL), enumerates who the decedent’s next of kin are. Per EPTL Section 4-1.1, the order of priority is generally the spouse (if no children), the spouse and children, parents, siblings and grandparents. This statute is more than meets the eye and can be easily misconstrued. It’s very important to consult with a New York probate or distributee lawyer to understand who must be included in the estate. Many times, distributees are excluded from an estate based on improper advice or lack of understanding of the statute, which can result in the estate incurring extensive legal fees to fix the issue.
Distributees in Probate Proceedings
Identifying the distributees is important in both probate (will) and administration (no will) proceedings. Whether a probate or an administration proceeding, you cannot escape the task of identifying the decedent’s distributees. In most circumstances, distributees are the only persons with standing to challenge a will. If the will nominates you as the executor or you wish to probate the will because the named executor refuses to do so, your probate lawyer’s first request to you should be to list the names and addresses of the distributees. The attorney will typically ask you a series of questions to determine who they are. The sole heir to the estate may be you, it may be complete strangers to you, or it may be distant first cousins unknown to you and the decedent during his life.
Once the distributees are properly identified, they have to receive a copy of the Will and be notified of the probate proceeding via Citation (ie court summons) by a method of service depending on their domicile. Persons living in New York State must be personally served. Parties residing in the United States, but outside of New York, must be served by certified mail return receipt requested. For those living abroad, service is by international registered mail return receipt requested. To avoid the delay of mailing and the expense of a citation hearing, the distributees are always free to sign a waiver and consent form agreeing to the following: (a) the offered will is valid; (b) the will should be admitted to probate; and (c) that the petitioner be appointed as the executor of the estate.
If you are the sole distributee and named as executor in the will, then problem solved. But things can get very complicated and delayed when an heir cannot be found (process server unable to serve him, or mail comes back as unclaimed/undeliverable) or when the decedent dies without easily identifiable heirs. When an heir cannot be found, Surrogate’s Court may allow service by publication in a local newspaper, but only after due diligence efforts to locate the individual have been made. When there no unknown heirs, the county Public Administrator steps in to represent the interests of the State. The Public Administrator, acting on behalf of New York State, may request to examine, under oath, the named executor and the attorney who prepared the document to determine whether the will is sound and was properly executed. If the PA suspects wrongdoing, they may commence a will contest to void the will. Why? If the decedent died without any living distributees and there is no will, his estate would pass to the State of New York. Further, the Surrogate’s Court may appoint a guardian-ad-litem to represent the interests of the unknown heirs until a time that they are found. The guardian-ad-litem may join in on a will contest if warranted.
In sum, when a decedent dies with a last will and testament, the probate petition must disclose the names, interests (ie son) and addresses of the distrbutees. These are the only people who have standing to challenge the will (unless there was a prior will, then the beneficiaries in that document may have standing to bring a will contest). The difference between when a decedent dies with a will and when he dies without one, is that in the former, any distributees omitted from the will, do NOT inherit, unless they are successful in challenging the will.
Distributees in Administration Proceedings
Unlike probate, the distributees in an administration proceeding (no will) inherit the estate. This is why it is so important to properly identify who they are. Despite how easy this may sound, the rules concerning the determination of who is a distributee, can get complicated if the decedent had non-marital children or far removed cousins, for example. In some instances, Surrogate’s Court may order a kinship hearing for alleged family members to present evidence proving that they are in fact the decedent’s distributees.
As in probate, the petitioner must name the decedent’s distributees in the petition for letters of administration. Any unknown or lost distributees will create a delay for the estate. The distributees are the only persons who can become administrator and therefore must be noticed of the proceeding. The distributees must sign a waiver and consent form agreeing to the petition’s appointment or be served with a citation (ie summons) to appear in court. Beware: if a citation is property served on the heir and they fail to appear on the given date, by default, they have consented to the petitioner’s appointment. However, despite the default, a bond is typically imposed on the non-appearing/ non-consenting heir’s share of the estate. A distributee can also file objections to another distributee becoming administrator of the estate, or file his or her own petition for letters of administration.
We know what we are talking about when it comes to distributees! Whether your matter is a probate, an administration or you just need to identity the distributees, contact us and we’ll gladly help. New York probate lawyers at 646-233-0826.