The Unknown (Half) Sibling – Part 3

In this third post of three I have been discussing Mary’s call to our office.  She had taken care of her cousin, Sam in his home until his death following a long struggle with Alzheimer’s Disease.  Sam had promised he would leave Mary his home but he never put that in writing in the form of a will.

We filed an application asking for Mary to be appointed administrator of Sam’s estate so we could identify the heirs who would be entitled to share Sam’s estate.  Mary believed that she and her sister, as first cousins, would be the heirs but as I explained last week, she mentioned the possibility that Sam’s father had a daughter from a previous marriage.

We hired a search company to conduct a genealogical search.  This required establishing Sam’s family tree through public records such as birth certificates and death certificates and other records such as obituary notices.

With a little bit of effort we were able to get confirmation of the family rumor of a half sister.  In fact, Sam’s father did have a daughter from a short previous marriage.  To Mary’s knowledge, Sam never met her but that didn’t matter.  Our search results showed that she died 10 years before Sam.  “So is that it then”, Mary asked.  “Would I and my sister then be next in line?”

Not so fast.  Unfortunately, I had some bad news for Mary.  New Jersey’s intestacy laws provide that if there are no surviving descendants or parents of Sam then next in line are the descendants of his parents.  The sister did have a son who is living.  Under New Jersey law he should receive 100% of the estate.  As a nephew he would have priority over a first cousin even though he never to our knowledge even met Sam.

I told Mary that the nephew would inherit the house and the money in Sam’s bank accounts that were in his name alone.  These were all probate assets.  The one small consolation was that as administrator Mary is entitled to a commission.  This payment is a percentage of the probate assets. I told Mary it would be approximately $25,000.

She would, however, have to vacate the home so it could be sold.  Not good news for Mary.  I again explained to her that the State allows each of us to express our wishes as to the distribution of our estate when we die but it must be done in writing and in accordance with the provisions set out in the law, namely by way of a last will and testament.  Failure to exercise that right leaves it up to the arbitrariness of the State’s intestacy laws which may not be what you want.  

In this case, we can be pretty certain that Sam did not want to leave his estate to a nephew who he probably never even knew existed, to the detriment of his cousin who cared for him in his last years.  Unfortunately that is exactly what will happen.