We recently had a case whether the decedent worked for the United Nations, and as a condition of employment had to deposit wages into a New York bank account. Decedent died in Africa, and his children, all African citizens, could not retrieve this money – which had accumulated to a large sum over his many years of employment.
To claim a deceased person’s property in New York is no easy matter. You can’t just show a birth certificate and the institution releases the money to you. To claim estate assets, a proceeding must be opened in Surrogate’s Court.
The first question that needs to be answered is whether the deceased had a will.
If the decedent had a last will and testament – a probate case must be started.
If the decedent died without a will – then an administration case must be opened.
In a probate or an estate administration, before any assets can be claimed or distributed – many documents must first be filed with the Surrogate’s Court. When the file is complete, the clerks and ultimately the judge will review all submitted papers, and in the best case issue a court order appointing an executor or administrator for the estate. The appointed person is also called a fiduciary or the estate representative.
This estate representative has the authority to access decedent’s accounts, liquidate stocks, sell real estate, and deposit proceeds into an estate bank account. After paying expenses and administrator commissions, he or she will need to distribute the net estate assets to the heirs.
Claiming decedent’s money, stocks, or an insurance policy from a financial entity or NY Unclaimed Funds Office is a hard task for nonresidents. A common dilemma we see with foreign decedents is that their heirs are also foreign non-US citizens. In order to become an administrator of a New York estate, the person must be a US citizen or at the least a US permanent resident (i.e. green card holder). Many times, the heirs cannot satisfy this requirement – they are not US citizens or green card holders. Does this mean they can’t claim NY assets and property is forfeited to the state?
No. If an heir of an estate cannot become the administrator, then someone else can do the job for them. For example: Erik dies leaving a bank account in New York. He is not married, and has two adult kids. Both children are Chinese citizens. How can these two foreign citizens claim this bank account if they cannot be appointed administrator by the court? Here are their options:
1) they can ask a friend or family member who resides in the US and is a US citizen or green card holder to serve as administrator;
2) they can hire a law firm to serve as administrator; or
3) they can ask NY Surrogate’s court to appoint a public administrator for the estate.
Whenever our law firm receives a call from a foreign heir, one of the questions is whether they know someone in the US that can serve as administrator for them. Most do not know such a person. A stranger to the estate or even a distant relative that is not inheriting does not want to take on such a roll out of fear of tax repercussions, dealing with the court, and not being familiar with the process.
At Mishiyeva Law, PLLC, we are happy to serve as fiduciary of a foreign decedent’s estate or for heirs that do not qualify to serve themselves. We have lots of experience navigating the ins and out of a foreign estate, and can get the task done quickly. During the process, we communicate and consult closely with the heirs so they are fully informed and receive the best value of the estate.
The final option is to ask the court to appoint a public administrator (PA) over the estate. The PA office handles many estates in New York. They mainly take over when the decedent dies without any living relatives, or when living relatives exist but they are not interested in being involved. In our opinion, this is the worst choice. The PA office is extremely backlogged – they handle thousands of NY estates. When a PA is appointed over an estate, expect to lose all control and receive no communication. If the estate has substantial assets, then the PA office will hire an expensive law firm to administer the estate and estate funds will be used towards long legal fees. This option should be the last resort.
Some final points on this.
When the decedent is a foreign citizen with assets in NY, more special rules apply.
– An estate tax return must be filed if the assets exceed a certain threshold.
– New York State must provide a waiver and consent form to the estate before an executor or administrator can be approved by the Surrogate’s Court.
– If the decedent did not have a social security number, then the fiduciary must apply for an ITIN before she can open an estate account or file tax returns.
– Whenever the decedent or any heir or beneficiary of an estate is not a US citizen, the Consulate General office of New York for the country where the parties are citizens, must be notified.
– Documents and a death certificate coming from a foreign country must be translated to English if they are written in another language. All papers must be apostilled or certified by the US consulate office in the country of origin.
NY estate rules for foreigners are long and strict. This is exactly why you should not attempt to open an estate in NY for a foreign citizen or foreign heirs without a probate lawyer. One misstep and the estate can linger in court for years with no end in sight.
At Mishiyeva law, we have lots of experience accessing and claiming bank accounts that belong to a foreign decedent or when the beneficiaries are foreign citizens. Call us today to discuss your matter at 646-233-0826.
