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Welcome to the O'Sullivan & Zacchea Law Blog! Check back regularly for practical legal tips on real estate, trust and estates, elder law and other everyday legal matters. 

  • Your Great-Aunt's Fortune or A Kinship Proceeding in New York


    Your Great-Aunt's Fortune or A Kinship Proceeding in New York

    When someone dies (a "decedent") without a will ("intestate"), their property must be distributed. In New York, the folks entitled to a share in the decedent's property (the "distributees") are defined by statute and separated into classes. Commonly, we identify these folks as the decedent's relatives--parents, children, spouses, siblings, cousins and so on, throughout the family tree.

    At first blush, such a question may seem elementary; after all, who wouldn't know their "relatives"? However, in a time of blended and non-traditional families, multiple marriages, adoptions and foreign divorces, questions about who qualifies as a "relative" have become increasingly complex. 

    In order to resolve disputes about inheritances and answer questions about relationships, New York law provides a mechanism called a "kinship proceeding" whereby a relative proves its lineage to the decedent. The Court requires specific information regarding the decedent's family. Often, the proof of lineage includes documentary evidence, but may require specific evidence, such as a DNA test. Sometimes, it is necessary to include expert testimony from a genealogist. Now so, more than ever, the presentation of documentary evidence is a challenge, especially when the validity of documents is questionable-as is the case when evidence is required to be obtained from foreign countries.

    The burden of proof in a kinship proceeding rests on the person who is claiming a right to receive estate assets. Rules of evidence in kinship proceedings are also very technical. For example, a claimant may take advantage of a legal presumption that a person who would be more than 100 years old on the date the decedent died is presumed to have pre-deceased the decedent. Also, a presumption of death may be applicable if a possible distributee cannot be located after three (3) years following the decedent's death and the Court is satisfied that a thorough search has been conducted.

    The Court will consider all the evidence presented during the kinship proceeding before making a ruling and establishing a heir's right to inherit the decedent's property. After all debts and claims have been paid, the administrator can then transfer the assets and close the estate. 

    Ultimately, if you have a question where you are entitled to inherit from an estate, it is wise to consult with an attorney experienced with kinship proceedings, especially since there are no out of pocket expenses for you. Please feel free to call Peter Zacchea for a free consultation on this matter.

  • The Delicate Process of Disinheritance


    The Delicate Process of Disinheritance-The In Terrorem Clause 

    With Thanksgiving upon us and the rest of the holiday reasons shortly to follow, we recall Tolstoy's words: "Happy families are all alike; every unhappy family is un happy in its own way." It is in this spirit that we turn our attention to a common issue in estate planning -disinheritance.

    Disinheritance refers to the exclusion of an individual as a beneficiary of an estate. From a practical position, the decision to disinherit someone should not be lightly taken, as it may ultimately lead to undue cost and expense through litigation of the will. Nevertheless, such undertaking are often warranted by the circumstances of the family dynamic. In that vein, disinheritance can be achieved through a variety of strategies, which we will happily discuss in later blogs. Today we will focus on one particular strategy: the interrorem clause. 

    An in-terrorem clause, sometimes referred to as a no-contest clause, in a New York will, simply (and usually sharply) states that a person who challenges the Will is precludes from inheriting under the Will. Although it is true, that many states will not enforce such as clauses, since they are seen as violating public policy and New York court views such provisions suspiciously, they are enforceable under EPTL 3-3.5.

    Please feel free to contact Peter Zacchea to discuss estate planning. He is also available by email: We look forward to speaking to you! 

  • Advanced Directives: A Cautionary Tale


    Advanced Directives: A Cautionary Tale

    Estate planning documents, also commonly referred to as Advanced Directives, are vital to the safety and protection of your assets and personal well-being. As such, those instruments, especially Last Wills & Testaments, Health Care Proxies and Powers of Attorney, should be updated regularly, as families and personal situations change. We typically recommend revisions to your Advanced Directives after significant life events; such as marriage or divorce, the birth or adoption of children or grandchildren, the unfortunate death of a loved one of if your investments have grown or changed.

    The dangers of inadequate planning were highlighted in a practical way for us when we were recently approached by a client whose mother has suffered a stroke. The client's mother was left physically and mentally debilitated. She was unable to write checks and pay bills from her account. The client had contact the bank and explained her unfortunate situation. The bank, though sympathetic, advised that they were powerless to authorize her to access her mother's account without a duly executed Power of Attorney. However, due to her mother's physical and mental condition, she no longer possessed the required legal capacity to enter such documents. As a result, the mother, stricken with a variety of ailments, was without the ability to provide for her needs or appoint someone to assist her at a time when she needed it most. The client's only option was to seek guardianship, a drastic and costly endeavor, in order to properly address her mother's needs. 

    Unfortunately, the foregoing case is not an isolated one. Such instances occur more frequently than is commonly thought. However, the reality is that such unhappy scenarios can be easily avoided with modest foresight and resources. A properly prepared estate plan protects you at all stages of life and provides security for you and your family in uncertain times. 

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