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Intestate Administration: It Just Might Kill You

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Intestate Administration: It Just Might Kill You

Unfortunately, when family, death, and money converge court battles are inevitable. The disputes often arise when no estate planning is involved or the planning goes awry, requiring heated, dramatic, and sometimes heart-wrenching probate (also referred to as estate administration) proceedings. This program covers model codes, statutory laws, and common law with respect to intestate matters. We will consider the changing legal definitions of family, the issues involved in administering estates when wrongdoing is suspected, and the rights, duties, and powers of personal representatives. We will also review hands-on examples of provisions that can be helpful in keeping at least us and our clients safe from probate landmines.

Transcript

- Hello, thank you for viewing this presentation on Intestate Administration and how just utterly challenging it can be. I hope you find the materials and information shared helpful in your overall understanding of probate and estate administration, and useful for your clients. My name is Max Elliott and I'm the Founder and Managing Attorney of The Law Offices of Max Elliott. We're a boutique estate planning and estate administration firm serving clients in Chicago, Northern Illinois, New York, and Florida. Before I begin, I must thank the team at Quimbee for giving me the opportunity to share knowledge and insights about today's topic. I also want to thank my incredible associate, Ashley Lindsay, who helped with the research. Thank you Team Quimbee and thank you Ashley. So today's presentation, intestate administration, it might just kill you, will cover issues involving people who die without a will or a trust, basically without any estate planning done. So it won't cover substantive issues related to wills or trusts that, of course, are involved in estate planning. I save that for other presentations. However, let me just say that both practice areas, estate planning and estate administration or probate, inform each other. So while I absolutely understand colleagues' preferences for one practice area over the other, it is a great benefit, if while focusing on one, attorneys have a working knowledge of the other. This topic is also presented in light of the Uniform Probate Code or the UPC, non-UPC law derived through states that have not adopted the UPC but have their own intestate statutes, and common law. Also interspersed and at the end are hypotheticals for us to review. The Uniform Probate Code, drafted by the Uniform Law Commission, was first introduced in 1969 in an effort to codify common law and harmonize state laws involving intestacy. To date, less than half of the United States' jurisdictions have adopted the UPC or some version of it. A new version of the UPC was introduced in 2019, again trying to harmonize the uniform law with relevant of the Uniform Parentage Act and that's trying to bring family law into the 21st century. Currently, no state has adopted the 2019 UPC version yet. And what does this mean for you? It just means you'll hear me say the following several times during this presentation, even if your jurisdiction has adopted the UPC or some version of it, read the entire statute. Hundreds of hours are poured into drafting uniform laws and the UPC is no exception, but that doesn't mean that it fully comports with your state's public policies or common law. The definitions, terminology, and concepts in today's presentation are derived primarily from the three sources just mentioned, the Uniform Probate Code, state intestacy laws, and common law. Most of the definitions that I've provided a lot here are from the UPC. And since I've provided a lot, I'm just going to entrust that you will review all of them. Because if I did so now, I would use up our entire hour, which would likely bore you and me to death. And so I'm just going to review the most relevant, such as, what is an intestate estate? An intestate estate consists of assets belonging to a decedent that are not effectively disposed of by a will or a trust. Now most people incorrectly assume that if someone has a will, then the will captures everything the decedent owns. If they were correct, our lives as lawyers would be a lot easier. Unfortunately, this is killer assumption number one, we know that often people pass away with a will and sometimes with a trust not accounting for a legacy or beneficiary that might have predeceased to them, or not referencing a bank account here or there. Or thinking, you know, I've got time, I'll deal with this real property titling later. But later never really comes, and the result is usually very unhappy executors, successor trustees, beneficiaries, or heirs. An interesting thing to note is that intestate is not defined by the UPC. However, intestate is the position of dying without having disposed of all of one's estate. And what is an estate for inheritance purposes? That's relatively simple, it's everything that the decedent owned outright at the time of their death. Before looking at the definition of heirs, I just wanna ask this question, do you have heirs? If you nodded, said, or wrote, yes, then I've got great timing because if you're listening to this presentation and you have an heir, I'm leaving the law for bigger and better things because I can talk to ghosts. Well, let's pay careful attention to the definition now. An heir is someone who can inherit from a decedent, An heir is someone who can inherit from a decedent, according to the laws of dissent and distribution, of the decedent's state. And we have our first sidebar. As stated earlier, the laws of dissent and distribution are governed by state law. Those distributions schemes are per stirpes, per capita, and by representation, and are illustrated in the following sayings. So first, per stirpes is illustrated by this example. A and A's children, C and D, are deceased. A had a surviving child, B. A also had five surviving grandchildren, E and F, whose parent is B, G, whose parent was C, and H and I, whose parent was D. In a per stirpital distribution, B will receive 1/3 of A's estate. G will receive 1/3 of A's estate, stepping into the shoes of their parent, C. And grandchildren H and I will step into the shoes of their deceased parent, D, where D's 1/3 share will be divided evenly between H and I. A per capita distribution with the same family tree as previously illustrated for per stirpes results in a different outcome however, because in a per capita distribution, A's estate is divided into equal shares among all surviving heirs, B, G, H, and I. Now the by representation scheme with the same family tree is still different from per stirpes and per capita. With by representation, the heirs are grouped by their generation with members of each generation sharing equally among them. Accordingly, upon A's death, B would receive 1/3 of the estate and the remaining 2/3 would be divided evenly among G, H, and I where they would receive 2/9 each. among G, H, and I where they would receive 2/9 each. Now as a law student, a number of my classmates said that they went into law because they didn't want to deal with math. Well, I once had a case with 16 heirs on three different generational levels. And the math, well as you can tell, it didn't quite kill me. But hmm, anyway, moving on. As we continue reviewing terminology, like I said, we can skip a few because hopefully you already know some of these and you'll review them on your own, such as the legal definition of property and estate, which are still provided if you need to be refreshed. More importantly, however, is the definition of child. The UPC has taken its definition of child from the Uniform Parentage Act. Thus, those of you in UPC states may want to review your state's law, your state law's Parentage Act or Marriage Act or Domestic Relations Act to ensure that you have a full grasp of the term child. For the UPC, the definition of child is inherently linked to the definition of parent, which now takes into consideration concepts of non-biologic parents and non-adoptive parental relationships. Likewise, colleagues should be mindful of how the terms minor and age of majority are defined. States and agencies may differ in how they define these terms, which can present a huge problem sometimes. For example, what if someone dies intestate with a child who is age 18, and is considered having reached age of majority with respect to the decedent's state law? Next, let's say the decedent died with a 401K that has no designated beneficiary, leaving only the 18 year old and, let's say, a surviving spouse. According to state law, as we stated, the child is an adult and would be able to inherit the 401K, provided no other issues would impede their ability to do so. However, according to the most updated Secure Act provisions which govern the inheritance of retirement assets, the child is a minor for purposes of inheritance because the Secure Act deems anyone under the age of 21 is a minor. Now since the secure act is federal law, we know that for purposes of this law, the child is a minor because of federal preemption, regardless of what the state law says. So does that also mean that per the Secure Act, the child who is age of majority with respect to the state, but not the secure act, will need a guardian because the decedent died intestate and the Secure Act considers the 18 year old a minor? I don't think so, but the decedent is rolling over in their grave, I am sure, if this were the case. And if the decedent, like I said, has a surviving spouse, what can that surviving spouse/parent do? Does the surviving parent say "No surviving child, I know you can take that lump sum of $100,000, but please don't." And yeah, that 18 year old looking at 100 grand is going to just take their parent's word for it, and let their parent hold it. Hmm, anyway, this scenario occurs more often than one imagines. So please be sure to review your state's jurisdiction on guardianship rules, retirement assets, and even reach out to colleagues who may have experienced this issue and can provide some guidance. Now speaking of guardianship, fiduciary, and its iterative forms, are terms of art we should be familiar with. But again, they're listed here, such as personal representative, administrator. I didn't mention special administrators, it's not in the materials, but let me talk about it just for a second here. Because the role of special administrator is generally more relevant in foreclosure proceedings, but we do see it occasionally in probate matters, especially in extra cantankerous proceedings. The court may remove a previously appointed administrator and appoint a special administrator to ensure impartiality and lawful administration of the estate. Now considering the role of administration, the UPC defines interested person as an individual with a familial relationship to the decedent, or a person with a priority for being appointed administrator. In Illinois and New York, public administrators and creditors actually have priority, which is lower than others who have priority. But still, depending on the petitioner, a creditor or public administrator may be appointed administrator despite the fact that a family member is the petitioner. Administrators may also be subject to supervised administration, which is the probate or estate administration court proceeding by which the administrator or personal representative must seek permission from the court for every substantive action that is to be taken regarding the estate. For example, listing real property for sale, contracting to sell the property, and distributing assets. And now we have our second sidebar, because you may have identified the fact that I'm using probate and estate administration interchangeably. This is because jurisdictions have their own nomenclature for court proceedings involving intestate decedents. In Illinois, it's probate. In New York, it's estate administration. In Florida, it's probate, in California, it's probate. But they're all different to a certain extent in terms of procedure, so check your jurisdiction. Additionally, not all jurisdictions provide what Illinois refers to as independent administration, where in straightforward uncontested probate matters, the administrator or personal representative is really only required to answer to the court twice. Once to become appointed administrator and open the estate and once to close the estate. Sometimes uniform laws and jurisdictions define terms in the negative, such as the UPC Section 2-802 that doesn't define what a surviving spouse is, but defines what a surviving spouse is not. A key descriptor here is separation, making clear that parties who are married but separated are still married. And thus a surviving yet separated marital partner, even if estranged, is still a potential heir for purposes of inheriting through intestacy and usually has the highest priority in terms of being appointed administrator or personal representative. Unless, of course, they killed their spouse, bringing the state slayer statute into play. But we won't talk about that right now. Having reviewed key terms and concepts though, let's put some of this information to work in our first hypothetical. Anne and Bobby were long time committed partners in a civil union, having raised two children jointly with Anne being the birth parent. Bobby recently died intestate. Considering the UPC, who is, or who are, Bobby's heirs, is Anne? Well, per the UPC Section 802 is in applicable to civil union partners. However, the definition of heirs defers to the jurisdiction's laws of dissent and distribution. So presuming that Anne and Bobby resided in a jurisdiction that recognized their civil union, Anne would be Bobby's heirs. Now, are the children Bobby's heirs? Well, Anne was the birth parent, so at first glance, one might think not. However, we can consider this issue using two analyses. The first analysis is through the definition of child, which is a circuitous route, but gets us there by way of the concept of defacto parentage. Per the Uniform Parentage Act, which the UPC recognizes and uses, Bobby would have to make the claim of defacto parentage, but Bobby is dead. Thus in a UPC jurisdiction, at this point, the children would not be Bobby's heirs. Now the second analysis is a little more straightforward because it considers the rights afforded civil union couples. Where in some jurisdictions children born to a couple while the couple are in a civil union, are considered children of both parties. Yeah, this right must be expressly provided for in the statute or common law of the jurisdiction. So while it may seem more straightforward, the issue of children inheriting from non-birth parents who are parties to a civil union is in fact tenuous. Still, if the jurisdiction is a UPC state that expressly provides that children are heirs of a non-birth parent who died while a party to a civil union, or the jurisdiction is a non UPC state that provides the same, or and goes through court proceedings to prove defacto parentage, or the jurisdiction provides for equitable adoption, or the concept of in loco parentis, we have a different answer. Anne and the children are Bobby's heirs. The first part of UPC's Article 2 involves dissent and distribution rules that try to consider blended families and children with more than two parents, whereby children of a surviving spouse that are not the biological children of the decedent shall not inherit unless there are no other descendants, grandparents, uncles, or cousins. This UPC provision follows what might be an obsolete opinion because the opinion is based on a survey more than two decades old of spouses of blended families. Today's families, I argue, are much more blended and can be much more complicated. So again, be sure to check your jurisdiction's rules and public policy. The UPC also tries to modernize intestate succession laws by removing the blood descriptor when discussing half siblings and scuppering the issue of a person inheriting from more than one relationship line. The nice semantics still don't prevent blood curdling sibling rivalries though. And as I think about it, some of the nastiest battles I have experienced were not rivalries of half blood siblings, but of whole blood siblings. The UPC also removes the requirement of a genetic parental relationship, as it recognizes that many couples use alternative reproductive technology methods for having children. Extending our hypothetical about Anne and Bobby, we found out more about Bobby's other family, learning that they had a surviving parent. So considering UPC Section 2, does Bobby have descendants and who is to inherit? Now, yes Bobby has descendants because Bobby would probably now be construed as a defacto parent to Dusty and Evelyn. However, Anne would still receive everything as Bobby's surviving partner per the jurisdictional rules for civil unions. And the fact that Bobby had a surviving parent is irrelevant for the analysis. Now before considering the rules of fiduciaries, let's take another sidebar to review estate administration proceedings, which I mentioned a little bit a little while ago. So yeah, as discussed earlier, there are two types of probate court proceedings for decedent estates, independent and supervised or adversarial. Accordingly, an administrator may be able to act independently or subject to court supervision. In Florida, they're always supervised. However, in other jurisdictions, such as Illinois, independent administration is generally more preferable and generally more popular and also streamlines the process. Nonetheless, supervised administration is sometimes more necessary, especially when families are about to go to war over a dining room set or the fiduciary is less than impartial, hmm. When there's a choice between independent administration and supervised administration, and a supervised administrator is appointed, the proceedings will likely be adversarial because that means there's a lack of trust among the parties with respect to the estate. So eat your Wheaties, don your shield, and learn every period, comma, and term of the statute of your jurisdiction and also common law involving supervised or adversarial administration and the issues relevant to your case. Because if you do so, you may just come out of this alive. Now if we recall the civil procedure days of law school, we'll remember the various types of jurisdiction, such as in rem and in personam. UPC Section 5 of Article 2 discusses supervised administration, which is an in rem proceeding, where the court is actually asserting jurisdiction over the estate's property. Supervised administration, like most adversarial proceedings, requires notices to be sent to interested parties as respect for the interested parties due process rights. Yet supervised administration isn't considered completely adversarial from the court's perspective because the primary objective is to administer the estate lawfully and efficiently. It isn't actually about heir V. heir, though often it seems as though it is. From the court's perspective, the question is, how will the estate be lawfully administered? Unfortunately, because of court battles, there may not be much estate to administer though once all is said and done. Still, if a party has committed a wrong against the estate, even sometimes before the decedent died, per the UPC, your client may be able to obtain redress in supervised administration or at least keep a near do well administrator from misappropriating estate assets. Regardless, if you determine that the administration may be contentious, as attorneys, our rules of professional conduct require that we confer with our clients and obtain their informed consent before pursuing the quasi litigation that could accompany supervised administration. Obtaining informed consent means that we have shared the advantages and disadvantages from a monetary and emotional perspective of contentious supervised administration. The advantages are that the estate may be lawfully administered and the lawful heirs receive their inheritance. The disadvantages are that the estate may diminish in size because of legal fees, family relationships may be irreparably damaged, and lawful layers may not receive their inheritance. So because the disadvantages often outweigh the advantages, pragmatically speaking, our firm's intake form asks potential clients if they think the matter will be contentious. If they say yes, we immediately inform them about the costs that they will initially have to bear in time and money and other resources, so that they are afforded an opportunity to think again. And perhaps try to work out things within the family before going to court and taking on the cost of a legal battle. Now one cost an administrator or representative must bear, Now one cost an administrator or representative must bear, regardless of whether a legal battle ensues, is that of a bond, an insurance premium they must pay to protect the heirs and creditors of the estate. If the personal representative absconds with estate assets, the surety company will make the heirs and creditors whole but will also pursue that near do well representative. In certain jurisdictions, bonds are always required in intestate administration. However, the UPC also mandates that any party within interest in an estate, whose value is above a certain amount provided by the state, can just legally demand a bond from the representative without obtaining a supporting court order. Now like I, you can probably see advantages and disadvantages to doing this. Used in a meaningful way, it could deter malfeasant representatives who would otherwise not have to pay a bond. On the flip side, a representative of limited means who's just trying to ensure that their family member's estate is lawfully administered may have difficulty meeting such a demand. Now considering malfeasant fiduciaries, Section 7 of Article 3 is very helpful for administrators dealing with issues of financial exploitation of an elder before the elder passed away. It makes the administrator's responsibilities relate back in time so that the administrator may, as I mentioned a little while ago, seek redress for diminished estate assets. For example, let's say a senior was suffering with cancer, lived at home, and dependent on someone for care because they had no spouse or child. And let's say the caregiver began helping themselves to this senior's bank account. After the senior's death, this UPC Section 7 would provide the administrator with the authority to go back to the financial exploitation period and seek a cause of action against the caregiver post the decedent's death. Most statutes provide that an administrator's duties do not begin until they're appointed by the court. Now if that remains the case and there's no other recourse, then the administrator would have no authority to go after the caregiver in the example just provided. However, many jurisdictions also have financial exploitation statutes with reasonable statutes of limitations. So if you experience this issue with an intestate estate, in reviewing those statutes, you may find a remedy available for your administrator even if the state is not a UPC jurisdiction. The UPC also helps to ensure that the administrator's role is clear, underscoring that role using a best interest standard with respect to settling and distributing the estate efficiently and expeditiously. To be clear, the best interest standard applies to the estate, not the heirs, which is, you know, yeah, a little odd because the estate is not a sentient being. But one can see that if the administrators' actions are beneficial for the estate, yeah, the actions are beneficial for the heirs or other interested parties. However, like most statutes, an exception exists to the best interest standard whereby the administrator who acts in good faith, with consent, or per court order, won't be held liable for their actions if those actions have adverse effects on the estate. As I mentioned earlier, generally, notice must be provided to an estate's heirs so that they can protect their inheritance rights. What is counterintuitive for some administrators is that the notice also protects them in case of challenging family dynamics. If an heir is hostile, it's always best for administrators to double dot the I's and triple cross the T's and providing timely notice is one way to do that. Still, some administrators, especially those who are family members, believe that they know what the decedent wanted and will not abide by the law and, for example, will not send the requisite notices. Not doing so, per the UPC, constitutes a breach of fiduciary duty, but ironically doesn't invalidate the administrator's appointment. Now this may be related to the fact that an administrator may have inadvertently missed an heir or was overwhelmed, which may happen and you don't really wanna punish somebody in that situation. However, it might be prudent for the breach to result in a presumptive invalidation or a presumptive retention, either of which can be, of course, rebutted using a preponderance of the evidence standard or even by the administrator procuring a waiver signed by the missed heir, for example. It's just a thought for the Uniform Law Commission drafters out there. But as it stands now, if the administrator knowingly flouted the law, then per the UPC, the result of that breach is to allow the breaching administrator to continue representing the estate, which would be imprudent to say the least. Not that administrators like it, for example, but at least Illinois law requires petitioners to send notices to heirs at least 30 days before the hearing to open the estate and appoint the administrator. The notices should include waivers and consent for the administrator to act, which hopefully all heirs will sign. But regardless of whether the heirs sign the waivers, the notice provision protects the rights of all parties involved. Administrators or personal representatives have other duties in addition to sending notices. Sections 707 through 711 of Article 3 enumerate some of these responsibilities, providing an inventory of the estate and updating the same when new information comes to light, taking possession of the estate for the sake of preservation, paying taxes, disregarding unsecured debts, and taking ownership of the property, but again, solely for the benefit of the heirs. Article 3 also explains that a personal representative's duties are nearly the same as those of a trustee. However, the UPC limits the damages to court restraints or to court restraints or removal of the administrator. I suppose this presumes that a bond has been obtained for the estate, so any monies gone missing will be replaced by the surety company. But what if a personal representative sold real property belonging to the estate and kept the money? How is that handled? Well, the UPC provides that as long as the buyer of the property was a bonafide innocent buyer, their interest will not be disturbed. But what about the heirs? What if the personal representative then spent all of the proceeds from the sale, and has no assets of their own by which a lane could be placed? Well, there's a phrase with the same acronym that is used for a statute of limitations that I will not use here, but it's unfortunately applicable to heirs in this situation, the acronym, SOL. And now we have another hypo, moving along with Anne and Bobby. Anne, Bobby's potential personal representative, is overwhelmed because Bobby was far wealthier than Anne knew. Anne and Bobby's sibling, Chris, though always got along. So Chris has offered to help Bobby administer the estate and they successfully petitioned the court for Chris to act as co-administrator with Anne. But the children, Dusty and Evelyn, have seen Chris driving around in a new luxury electric SUV. But the copy of the petition they received from Anne stated the value of Bobby's personal property was unknown. How would you advise them? Well, the UPC requires co-representatives to act unanimously except for two situations, which are not present in this case. Those situations are accepting assets for the estate and in emergencies where the co personal representatives can't get together and decide. Accordingly, I think we should step back and determine first Dusty and Evelyn's rights. Did they have right to receive the notice, which would mean they have standing to bring crafty Chris to court? Well, per the UPC, the children are not heirs unless they were proven so via defacto parentage court proceedings. So let's say they're not currently heirs, does that mean they have no standing? Well, no, because they're interested parties based on the parent-child relationship to Bobby. Bobby was paying their tuition and now they're seeing their tuition touring the town and going to luxury car wash spas. So here, you may want to advise them to petition the court to convert the non-adversarial administration into adversarial or supervised administration, and demand a review of the current estate value via an inventory and also demand a bond. A memorandum of law with supporting documents, like maybe Bobby's signature on tuition checks and tuition agreements, would likely be very instructive to a judge on the issues of parentage and interested parties. So thus far, we've gone through about 2/3 maybe of the material here discussing statutes. Now it's time to turn our attention to common law, and we'll start with issues involving children in in re Estate of Poole, a 2002 case from Illinois. The primary issue in Estate of Poole was whether an unmarried donor of genetic reproductive material for a stillborn child could be recognized as a child's parent. Randy and Christina lived together first in Illinois, then in Virginia, and then back to Illinois. Their cohabiting relationship lasted for almost a year, during which time Christina became pregnant. Randy provided financial support, held himself out to be the baby's father, and had a positive relationship with his parents and Christina's parents. Tragically, a car crash ended Christina's life while she was eight months pregnant and, as just stated, the baby Madison, who Randy named, was stillborn. Christina's mother, Deborah, sought to bring a wrongful death action, seeking damages on behalf of Madison's estate. However, to do that in Illinois, probate must be opened on behalf of the decedent's estate. So Deborah filed a petition to become administrator of Madison's estate, but she didn't notify Randy of the action and didn't name him as Madison's parent on the affidavit of heirship. Nevertheless, Randy learned about it and filed a cross petition contending that he should have had priority because he was Madison's father. Now in this case, as you probably incorrectly presumed, not only would Randy have priority over administering Madison's estate, but as her surviving parent, according to Illinois's laws of dissent and distribution, Randy would also be the sole beneficiary of any wrongful death action, which is obviously not what Deborah had in mind. So Deborah contended that Illinois' Probate Act required that Randy be an eligible parent. Per the statute, an eligible parent was a decedent's parent who, during the decedent's lifetime, acknowledged the decedent as a parent's child, established a parental relationship, and supported the decedent as the parent's child. Part of the definition of eligible parent, as you just heard, required the parent be a participating actor during the child's lifetime. Well, Madison was stillborn, so, of course, Randy couldn't satisfy the requirement of being an eligible parent. Moreover, Randy couldn't satisfy the requirements of parentage under the Illinois Parental Act at the time. So the Circuit Court found in favor of Deborah. Randy appealed on the grounds that he held himself out to be Madison's father while she was in utero, and that should count for something. Deborah clung to the eligible parent argument and added a biological argument to her pleadings, contending that Randy couldn't give birth, but Christina could, so Randy couldn't be the parent. The Appellate Court dismissed Deborah's biological argument, explaining that the Illinois legislature intended for the statute to be gender neutral. But the court explained, if we wanna look at the biological argument, because the statute defining eligible parent used the term both in its language, meaning both parents, and since Christina didn't have a lifetime relationship with Madison either, but Deborah insisted Christina was a parent, then logically Randy would have to be considered a parent also. Not giving up, Deborah sought to use abortion cases to try to win her case against Randy inheriting from Madison. The court negated the relevance of the cases Deborah used and instead considered the case Seef V. Sutkus, that considered different relationships to decedent's in a wrongful death claim, including parents and decedents conceived before marriage. Still, Seef required proof of the biological relationship between parent and decedent, and Randy had not yet tendered that. So Randy did prevail, as long as he could prove paternity. The next case, application of Gray, a 1987 New York case involving intestacy and lack of notice, or affidavit of service using New York's terminology. In Gray, Marie Etheridge married Angel Gray after divorcing her first husband, Kenneth, with whom she had a child, Roger. Angel eventually adopted Roger. Now Kenneth died without a will or trust in 1984, and presumably no spouse or children. The petitioners and distributees for Kenneth's estate were Kenneth's nieces and nephews. One nephew, Herbert, was appointed administrator of Kenneth's estate. Roger learned of the appointment and filed a petition seeking to revoke Herbert's authority and appoint Roger as the administrator and sole distributor of Kenneth's estate. To support his petition, Roger argued that the court misconstrued a section of New York's law with respect to adopted children, but the legal timeline didn't favor Roger. Sometime after his birth, the New York legislature created a task force, the Bennett Commission, to modernize New York's estate laws and one of the provisions involved adopted children. Specific to Roger's case, the provision which eventually passed eliminated the ability for adopted children to inherit from their biological parents. And equally important, the law was retroactive. Now, Roger argued that the law's retroactivity conflicted with the general rule that most of us know regarding statutory construction, whereby if a law deprives a state citizen of a right, it will not be applied retroactively. The court disagreed, reasoning that since no adoption dates were stated in the law and that the law was unambiguous and applicable to Roger, hmm. Well, in 1996, another case of intestacy and children was heard by the Illinois Appellate Court in re Estate of Brittin. Estelle and Stephen Brittin's family consisted of themselves and their two children, William and Mary Ann. William was Estelle's child from a previous relationship, Mary Ann born during the marriage between Estelle and Stephen. Estelle died leaving Stephen, William, and Mary Ann as her surviving heirs. Stephen then adopted William. William then died at the age of 46, leaving five children of his own. Then Stephen died intestate. Now Mary successfully petitioned the court to probate Stephen's estate without the knowledge of William's children. And then tried closing it also without their knowledge, but they found out. In Brittin, the issue was whether the natural children of an adopted adult were the descendants of the adoptive parent for inheritance rights. Illinois's intestacy law at the time provided that adopted children were the heirs of their adopting parent and protracted that line of inheritance through the adopted children's descendants. Accordingly, William's children, not his sister, were deemed his heirs at law for purposes of inheritance. However, Illinois's law changed a bit the year after Brittin was decided and now creates an exception to the rule. Providing that if a child is adopted after reaching age of majority, which we know is 18 in Illinois, and the child never resided with the adopting parent before reaching 18, then the parent-child relationship is recognized, but not for the purposes of inheritance. The change to law would not have affected the outcome in Brittin because William lived with Stephen before reaching age of majority. But it's interesting to note that Illinois law clearly stated that the change to law applied prospectively and not retroactively. And here, we have another sidebar. Illinois Estate planning attorneys who have prepared instruments after January 1, 1998, should look carefully at this rule because it's applicable for the purpose of determining the property rights of any person under any instrument and applies to all instruments executed on or after January 1st, 1998. Now our last case involving testy and children hails again from New York. Hogan V. Kelly was decided in 2011 by the New York Appellate Division. Ferdinand Powell resided in Brooklyn with his wife in a property that he owned. His wife predeceased him and when Ferdinand died, he had one surviving heir, a daughter, Carmen, who was a Panamanian citizen. Now before dying two sisters, Dorothy and Camille Kelly, supposedly provided caregiving services to Ferdinand, moving in after his wife died. And when Ferdinand died, they stayed in the property, transferred titled to Dorothy, and tried claiming ownership under the doctrine of adverse possession. In New York, adverse possession has five elements to satisfy. Taking the property was hostile under a claim of right, it was actual, open and notorious, exclusive and continuous for the required period, that it's actually seven elements, but who's counting? Anyway, Carmen, Ferdinand's child, didn't find out about the hostile takeover of her inheritance until 13 years after her father's death. However, a Louis Hogan petitioned the court to open her father's probate estate and the court appointed Mr. Hogan as administrator who claimed that he was the owner of the property. Now upon finding this out, the Kelly's sisters filed a cross petition and Hogan moved for summary judgment, arguing that the sisters didn't know who the owner of the property was. When they moved in, they thought it was Ferdinand. Sidebar, well, New York changed the law before Hogan V. Kelly defining what a claim of right was. And it's a reasonable basis for believing the property belonged to the adverse possessor or the property owner. Hogan insisted that the changed law was applicable, but the sisters disagreed, arguing they became owners in 2006. Well, the court considered a rule that should be familiar to us now, the rule involving statutory construction of retroactive laws and found that the law did not apply because it would remove the sister's rights. So it didn't apply retroactively. I'm dying here New York, can retroactive rules be remove rights or not? Help me out. I'm dying here, man. Anyway, moving on, the New York Appellate Court did not totally agree with the sisters either because they could not show hostile possession. So it seems that during the time they resided with Ferdinand, they paid him rent, writing checks and placing the word rent on the memo line. Thus, there was a genuine issue of material fact in question and summary judgment was denied though. From children to arguably married couples, the next case, Cohen V. Shushan, is out of Florida. Mr. Cohen was married to Tami Rana in a religious ceremony in Israel. Two children were born of the marriage and four years after marrying, Mr. Cohen and Tami divorced. Five years later, Mr. Cohen and Mali Ben Shushan started living together in Israel. This relationship produced four children and a business. Throughout their lives together, Mr. Cohen and Mali moved through Israel's society as though they were married. This ended in 2013 with Mr. Cohen's death. Now, one of the children from Mr. Cohen's marriage to Tami, Diana, lived in Florida and opened Mr. Cohen's probate estate in Florida. The pleadings named all of the children but didn't name Mali. Another war was raged because Mali insisted that she was Mr. Cohen's spouse. Diana agreed, but clarified Mali's role as Mr. Cohen's reputed spouse, which was not a legally recognized role with respect to Florida's intestacy laws. Next we have the battle of experts that explain domestic laws of Israel were considered for their relevance with respect to Florida laws. But in Israel, a legally recognized marriage must be performed during a religious ceremony. But reputed spouses were also provided with the same benefits as lawful spouses, much of the same benefits. So the Florida Court actually found in favor of Mali. Diana appealed and Florida's Appellate Court agreed with the probate court on the premise that the laws of Florida should be the predicate for the case. But then considered the merits, first looking at the term of spouse and its plain meaning and then drilling down further to the marital relationship definition. Noting for Florida a marital relationship is founded on legal principles. And unfortunately for Mali, her relationship with Mr. Cohen was not founded on such principles and, therefore, she could not be construed as the surviving spouse to Mr. Cohen in Florida or any other US jurisdiction. I'm thinking that Diana wasn't thrilled with her father enjoying such a great life with her stepmother. So what was it that Khan said to Kirk as he murdered Captain Kirk's son? "Revenge is a dish best served cold." And before considering the takeaways from this presentation, we'll look at one last case involving one of the most popular themes in intestacy battles, as I referred to earlier, sibling rivalries. In Kraker V. Roll, another New York case, Frederick Roll Senior died intestate, his wife predeceasing him, leaving two properties Frederick purchased in 1929 and 1933, and three children, Fred Junior, Lydia, and Anna. They were to receive these properties. Anna and Fred Junior lived in a house that was built on the 1933 property. And in 1946, Fred Junior sold the property without telling his siblings to Squirrel Homes. Lydia found out about the sale and sued everybody, Anna, Fred Junior, and Squirrel Homes, on the grounds that they were complicit in stealing her inheritance. Fred Junior provided three defenses, adverse possession, which we just talked about, statute of limitations, and the doctrine of latches. Fred Junior's council also provided that a mysterious someone had paid approximately $46,000 in property taxes, utilities, improvements on the land, and having the 1933 house built. Finally, Fred Junior had the temerity to plead that he owned the 1933 property, not his father. Well, the court dismissed the adverse possession and latches defense and considered the property ownership issue. Fred and his father shared the same name. So Fred Junior, when signing the deed over to Squirrel Hill, just kind of like left off the junior, basically forging his father's signature. So the court decided to call Fred's hand and raise him one better, reasoning that since Fred signed the deed and his father was the true owner of the property, Fred's intent must have been to sign his interest in the property away. Therefore, the interest of the other parties remained intact, and since Squirrel Homes was an innocent buyer in this case, the 1933 property was held in tenants in common between Fred Junior's sisters and Squirrel Homes. So I'm not going to go into much detail about the last case, the estate of Browne. It involved co-administrators who should not have been appointed such, and the issue of what happens when one is an unmarried partner and family turns hostile. So we're going to review now just a few takeaways. Intestacy can be straightforward or murderous. The UPC doesn't apply to approximately 2/3 of American states, but where it does apply, familial relationships are construed in more contemporary frameworks. So we attorneys should be mindful of the statutes and not rush to claim inheritance or disinheritance based on traditional family constructs, such as biological relationships or the lack thereof. If the UPC doesn't apply, many states are still developing contemporary frameworks of family, not only in their laws of dissent and distribution, but also their parentage, guardianship, and adoption statutes. Thus, attorneys who practice in this area will increasingly need to reference most of those statutes related to family relationships. Finally, if the matter becomes contentious or is contentious and the heat is increasing, be sure to obtain informed consent from your clients before going into battle. Doing so will probably save your life, or at least your license. Thank you so much for watching and listening.

Presenter(s)

Max Elliott
Founder and Managing Attorney
The Law Offices of Max Elliott

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