ARTICLE: Missing and Unknown Heir, Real Estate, and Adoption Law Practice and Procedure
By Michael S. Ramage, J.D., Certified Genealogist®
* Michael S. Ramage's Wynnewood, Pa., practice is limited to missing and unknown heir searches, forensic genealogy matters, and related expert testimony – www.ForensicGenealogist.Pro; (484) 437-8827. He is licensed to practice law in Pennsylvania. This article was originally published in 76 PA Bar Assn. Quarterly (July 2005): 125, and has been updated and expanded by the author as of January 2013.
CONTENTS:
I. INTRODUCTION
II. BACKGROUND
III. DUTY TO INVESTIGATE AND REPORT
IV. SELECTION OF HEIR FINDERS
V. FEES OF HEIR FINDERS
VI. REAL ESTATE AND QUIET TITLE ACTIONS
VII. DORMANT MINERAL RIGHTS
VIII. EVIDENCE
IX. FRAUD
X. PRACTICAL TIPS
XI. PENNSYLVANIA ADOPTION DISCLOSURE
TEXT:
I. INTRODUCTION
Most estate practitioners will face the prospect of a missing or unknown estate or real estate heir case at least once in their careers. Many legal, ethical and practical issues arise that should be dealt with promptly, efficiently, legally and professionally. The purpose of this article is to provide estate practitioners and Orphans' Court or Surrogate’s Court litigators with an introduction to missing and unknown heir law, practice and procedure. This article will not examine escheat law as it is beyond the scope of this review.
II. BACKGROUND
A "missing heir" case arises either (a) when a beneficiary specifically named in a will cannot be located, or (b) when an intestate heir's existence and possible relationship are known, but the whereabouts of such heir is not known. An "unknown heir" may arise where remaindermen in a will have predeceased the testator or testatrix, but more commonly occur in the case of intestacy. The "unknown heir" cases are more common and cause more difficulty for the estate lawyer and thus receive more attention in case law as well as in this article.
In the earliest times, determining the existence of all of the unknown intestate heirs could be very difficult, expensive and time-consuming as the oldest of Pennsylvania statutes allowed intestate succession to "... other descendants, to the remotest degree ..."[1] Leaving the courthouse doors open to remote heirs resulted in instances of excessive litigation.[2]
For a period of 12 years, the Pennsylvania legislature limited intestate heirs to first cousins, thus greatly simplifying the search for heirs.[3] From 1959 continuing to the present, the Pennsylvania legislature expanded the class of intestate heirs who may take before escheat to the Commonwealth to the "... grandchildren of deceased uncles and aunts of the decedent."[4] This change in law caused one Orphans' Court judge to exhort:
In this era of jet planes and increasing population shifts, it was difficult enough under the old law to locate all of the first cousins; it may prove impossible to locate children of first cousins, as required under the new act. It appears to us that the real beneficiaries of this legislation will, in many cases, be genealogists, engaged in the business of "heir-searching."[5]
The rules of intestate succession and descent are most easily understood by reference to charts.[6]
In Pennsylvania, the issue of missing and unknown heirs often first arises before the court at the call of the account for audit.[7] In contested cases, this will often result in a specially listed hearing to determine the issue of who inherits the estate. However, counsel are well-advised to address this issue at the earliest opportunity as it is much easier to find missing or unknown heirs close to the time of death of the decedent rather than years later when heirs may have moved or died.[8]
III. DUTY TO INVESTIGATE AND REPORT
Pa.O.C. 13.3 provides some guidance to estate practitioners concerning missing and unknown heirs:
Whenever the existence, identity or whereabouts of a distributee is unknown or it appears that a distributee may not have the actual benefit, use, enjoyment or control of the money or other property if awarded to him or the court is requested to withhold distribution or to make an award other than to the distributee or his nominee, the fiduciary or his counsel shall submit to the court or auditor, as the case may be, a written report outlining the investigation made by him and the facts relevant thereto. The report shall be in such form and may be filed at such place and time as shall be prescribed by general rule or special order of the local Orphans' Court.
Some local court rules provide more detailed guidance on the type of investigations required and the form of the report.[9] Pa.O.C. 13.2 requires notice to the consulate of the foreign country where a missing or unknown heir is believed to be located.
Pursuant to the rules of court, Pennsylvania decisions have consistently imposed a duty upon personal representatives or their counsel to perform a reasonable investigation for missing and unknown heirs, to provide notice to such possible heirs before audit, and to report the results of the investigation to the court.[10] Failure to do so may result in (a) an order to return distributed estate funds when additional heirs are discovered;[11] and (b) the possible liability of the personal representative to the heirs where negligence or fraud is involved.[12]
IV. SELECTION OF HEIR FINDERS
Counsel should carefully select a professional to search for missing or unknown heirs with a view to finding an expert who is ethical, experienced, and credentialed (to permit qualification as an expert witness at trial). A private investigator or qualified genealogist may be suitable to find a missing heir. However, locating unknown heirs usually requires the employment of a professional genealogist.[13] One court stated that an estate heir finder's "business falls somewhere between private detective work and exclusive genealogy."[14] The courts have acknowledged the use of genealogists for these purposes in a number of instances.[15]
The business of taking heirship cases on speculation for a percentage of the heir’s share in the estate was aptly described by a relatively recent decision:
The business or profession known as “heir-hunting” or “heir-chasing” has a checkered and interesting history, having long been established on an international and local basis as a lucrative means of livelihood. “Probate searchers” usually operate by investigating probate or surrogate court records to uncover estates of substantial wealth whose probate or administration has been delayed because of inability to contact one or more of the missing heirs. An investigator, usually unknown to the estate, locates the missing heir through cooperation with foreign agents in the same business. The missing person is hastily informed that he has a valid claim as an heir against an unsettled estate. He is promised genealogical charts and other information with which he can establish his heirship if he will assign a portion of his inheritance to the probate researcher.[16]
In order to provide the reader with some insight into the actual documentation that a typical “heir search” firm uses to lure unwitting "clients" on terms referred to as "on spec," excerpts of such documents will be set forth here. Each of these documents is briefly described so that this type of firm is differentiated from an ethical forensic genealogist that takes these case on an hourly fee basis.
This scenario is taken from an actual case and the dates and quotations are real. In the late fall of 2008, an international heir search firm (claiming to specialize in "forensic genealogy") learned through one of its "runners" at a county probate office about a three-quarter million dollar intestate estate that had no known heirs (it just so happens that this search firm's free calendar is posted on the wall of this probate office). The search firm does some preliminary research, finds a few possible heirs on one side of the family, and makes some exploratory calls to some of those possible heirs. On 17 December 2008, the search firm sends a letter out to some of the potential heirs that states, in part:
Document 1: "We are currently working on a matter and our preliminary research indicates that you would have a financial interest in it. This research is done at our own expense and we are compensated by heirs like you by way of agreements assigning us a percentage of their share of the estate assets. There is absolutely no out-of-pocket expenses to you and no risk at any time. [Emphasis in original.]
We are enclosing our agreement for your consideration. If it meets with your approval, please sign and return it ... Once we receive the agreement from you and other interested persons, we will then be in a position to divulge the full particulars to you.
It will be our obligation to compile all the necessary genealogical data in order to establish your relationship to the decedent. We will also be pleased to suggest to you an attorney who concentrates in probate law, to represent your interest in this matter. We would be totally responsible for the fees and costs of that attorney as stated in our enclosed agreement. You would only be obligated to us when you ultimately are to receive your respective shares of these assets.
....."
Enclosure: Agreement for 25 % of the heirs portion of the estate.
Document 2. 23 January 2009 letter from search firm to potential heir acknowledging receipt of the fee agreement and stating the name, place and amount of the estate. It also stated, in part, "We suggest the legal services of [name of lawyer] to represent your interests. ... If you would be interested in having him represent you, please sign the Acknowledgement of Disclosure form and return it to us. The fees and costs of Attorney [surname] [emphasis in original] will be paid entirely by [us]. At any time, you may hire an attorney of your choice, but it will be at your own cost/expense.
....."
Enclosures: Form to hire suggested lawyer; authorization for release of confidential information to search firm and lawyer; and a [poorly drafted] 18-point questionnaire about the decedent and heir.
Document 3: 29 January 2009 letter from law firm to heir asking for the heir's signing the second page of the letter to authorize the law firm to represent them in the matter.
Document 4: 6 March 2009 letter from the law firm to the heir, a second, repeat request (same as the last letter).
Document 5: 7 April 2009, the search firm signs off on an “Affidavit of Due Diligence” (with no citations or supporting documentation; many of the statements of "fact" turn out to be incorrect) that the search firm's lawyer sends to the law firm that is representing the estate. This is followed by the search firm's entering its appearance on behalf of some of the heirs with promise of proofs of heirship, etc., etc.
End of that case recitation.
An heir finder who performs actual legal work without a law license may be found to be engaging in the unauthorized practice of law.[17] One local federal bankruptcy court judge stated in dictum that, "The view that finders engage in the practice of law ... is not irrational ..."[18]
A question exists as to whether or not an heir finder is engaged in the private detective business. A private detective license is required in Pennsylvania where an investigator seeks to determine "(2) The identity ... [or] whereabouts ... of any person ... (4) [t]he whereabouts of missing persons."[19] An exemption applies to licensed attorneys.[20]
In one decision, an heir finder's work was found to constitute private investigative work under that state's statute and thus the finder's fee contract was held to be unenforceable as contrary to public policy.[21] Other states have found otherwise under their statutes.[22]
V. FEES OF HEIR FINDERS
Traditionally, heir finders, particularly the more unscrupulous ones, attempt to collect contingency fees as high as 50 per cent from beneficiaries or the estates. As will be seen, courts often look with disfavor on such contracts.
Ethical[23] and tactical reasons exist to avoid heir finders who insist upon a fee contingent on the value of the estate.[24] Counsel should also be mindful of the ethical proscription against retaining a witness on a contingent fee or outcome related basis.[25] Furthermore, such a witness would be subject to impeachment on cross-examination due to his or her bias or interest in the outcome of the case.[26]
A contingent fee-based finder's fee has been held to be improper and unenforceable for a variety of reasons, including champerty, bad faith and unconscionability.[27] Instead, the fees are subject to the reasonableness standard within the discretion of the Orphans' or Surrogate’s Court.[28] In the absence of a fee agreement, the court may deny a finder's fee on any basis.[29]
It is unclear whether heir finders' fees are deductible as an administrative expense for Pennsylvania Inheritance Tax purposes.[30] However, it is clear that the following types of expenses are deductible: (a) expenses incurred to administer and distribute the estate; and (b) litigation expenses that benefit the estate.[31] On the other hand, expenses that only benefit the beneficiaries or heirs are not deductible.[32] Based upon these general rules, an argument may be made either way. Therefore, until the law is settled in this area, an apportionment of the expenses (part deductible, part not) may be the most equitable solution.[33]
VI. REAL ESTATE AND QUIET TITLE ACTIONS
Just as in missing and unknown heir cases, due diligence is required to locate missing and unknown owners or their heirs relating to quiet title actions. Deer Park Lumber, Inc. v. Major, 348 Pa.Super. 625, 559 A.2d 941 (1989). This is so that proper notice of the action may be given to interested parties as required by due process of law. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988).
VII. DORMANT MINERAL RIGHTS
The 1986 Uniform Dormant Mineral Interest Act was drafted to "provide a means for termination of dormant mineral interests that impair marketability of real property." Connecticut adopted the UDMI Act while ten other states adopted variations of that Act.
In Pennsylvania, anyone with an interest in oil and gas rights in land may petition the court to declare a trust in favor of missing or unknown owners of oil and gas but diligent efforts must be used to locate them. Dormant Oil and Gas Act, 58 P.S. Section 701.1 et seq. The state's court rules (and in some cases, local rules) provide guidance as to the minimum requirements of due process. Pa.R.C.P. Rule 430.
VIII. EVIDENCE
With the adoption by most states of uniform rules of evidence,[34] most evidentiary questions arising in missing and unknown heir cases may now be answered by referring to such rules and applicable statutes. As an example, a list of the Pennsylvania rules and statutes that will most often apply in missing and unknown heir cases follows:
(1) Pa.R.E. 602. Lack of Personal Knowledge.
(2) Pa.R.E. 702-705. Opinions and Expert Witnesses.
(3) Pa.R.E. 802. Hearsay Rule.
(4) Pa.R.E. 803(6, 11, 12, 13, 16 & 19). Hearsay Exceptions.
(5) Pa.R.E. 901(b)(7 & 8). Authentication and Identification.
(6) Pa.R.E. 902(1-6, 8 & 11). Self-Authentication.
(7) Pa.R.E. 1003. Admissibility of Duplicates.
(8) Pa.R.E. 1005. Public Records.
(9) 20 Pa. Cons. Stat. Ann. § 2107. Persons born out of wedlock.
(10) 20 Pa. Cons. Stat. Ann. § 2108. Adopted person.
(11) 35 Pa. Cons. Stat. Ann. § 450.810. Vital statistical records.
(12) 42 Pa. Cons. Stat. Ann. §§ 5328 & 6103. Proof of official records.
(13) 42 Pa. Cons. Stat. Ann. § 6104. Effect of official records.
(14) 42 Pa. Cons. Stat. Ann. § 6106. Certified exemplifications of (public) records.
(15) 42 Pa. Cons. Stat. Ann. § 6108. Business records.
(16) 42 Pa. Cons. Stat. Ann. § 6109. Photographic copies of business and public records.
(17) 42 Pa. Cons. Stat. Ann. § 6110. Registers kept by religious societies and municipalities.
Of course, case law must also be considered when researching questions of the admissibility of evidence.[35]
In Pennsylvania, in general, and particularly when the Commonwealth contests the claim of an intestate heir, the person claiming a share of the estate should personally appear before the Orphan's Court.[36]
As to the burden of proof required for an intestate heir to defeat an escheat claim of the Commonwealth of Pennsylvania, "... the evidence must be so clear, precise, and definite in quality and quantity as to satisfy the court below that the relationship claimed existed."[37] A lesser standard of proof may apply "... where the existence of an heir is uncontested, and only claimant's identity as the heir is at issue."[38] Once the identity of an heir has been established, "... their burden to prove that there were no other next of kin whose claims are equal to or superior to their own is only by a fair preponderance of trustworthy and satisfying evidence and no more (citations omitted)."[39]
IX. FRAUD
Estate counsel must always be wary of heir finders or heirs who claim a share in a missing or unknown heir case. As one court stated more than one hundred years ago:
The whole claim bears strong marks of having been manufactured after [decedent's] death, when the buzzards began to gather over an estate which seemed about to pass to the commonwealth for want of real heirs.
....
... it behooves us always in cases of this class to remember that the idea of succession to the fortune of a hitherto unknown relative, exercises over even honest minds a fascination only to be compared to the gambler's desire to throw dice to get something for nothing, and hence it is the duty of courts and juries to scrutinize all such evidence with keen and incredulous eyes.[40]
X. PRACTICAL TIPS
In order to minimize the possibility of missing heirs in cases where the decedent was testate, the scrivener of the will should provide specifics of the family circumstances of the testator and testatrix and greater specificity as to the identification of the beneficiaries. The following sample will clauses demonstrate these points:
Article II. I hereby declare that as of this date I have no spouse, have never been married, nor am I a parent, natural or otherwise, of any children.
Article III. Upon my death I give the sum of $ 1,000.00 to my long-time housekeeper, Jane Clean, born October 7, 1915, and currently residing at 123 West End Street, Apt. 12A, Anytown, Carbon County, Pennsylvania.
It is crucial in potential missing and unknown heir cases for the personal representative or counsel to promptly arrange for the collection and safeguarding of all items that may assist in the location of potential missing heirs, and that assist in the identification of unknown heirs. Therefore, the following types of records should be obtained as soon as possible after the death of the decedent:
(1) Decedent's personal address and telephone books (paper, electronic and digital; this includes Personal Digital Assistants and cellular phones).
(2) Vital records (birth, death, marriage, and divorce).
(3) Obituaries and death notices for all family members.
(4) Funeral records of the decedent's family.
(4) Real estate and cemetery records.
(5) Credit and loan records.
(6) Insurance and retirement records.
(7) Educational records.
(8) Social security and financial records.
(9) Religious records (baptism; marriage; membership).
(10) Employment records.
(11) Military records.
(12) Family history records (paper, electronic and digital, including those saved as a part of a family history computer software program).
(13) Naturalization records (if decedent or a family member was foreign-born).
(14) Membership records (labor unions, social, fraternal, and beneficial organizations).
(15) Family correspondence.
(16) Family photo albums (paper, electronic and digital).
(17) A DNA sample (particularly where the remains of the decedent will be cremated).
Review of decedent's records of this type may enable the personal representative or counsel to avoid the need to hire an heir finder. However, if the need for a professional does arise, these records will greatly simply the finder's job and may make the difference between a found heir and escheat.
Lastly, if your missing or unknown heir case goes to hearing, be sure to discuss the case beforehand with your selected expert. He or she should be able to assist in the formulation of appropriate questions for direct or cross-examination, and help in pointing out the strengths and weaknesses of the facts of the case.
XI. PENNSYLVANIA ADOPTION DISCLOSURE
Effective 27 April 2011, Pennsylvania amended its Adoption Act to: (a) allow for the first time enforcement of future open adoption contracts ("Voluntary Post Adoption Agreements"); and (b) permit adult adoptees and descendants of adoptees to make a request by way of a standard form to obtain adoption information from a mutual consent registry where the birthparents and adult adoptees have filed waivers of confidentiality (previously, a petition to the court was required). Act 101 of 2010. This mutual consent registry will permit the adult adoptee to obtain a summary of their original birth certificate (but not the original birth certificate itself). For additional details, see: http://www.adoptpakids.org/Documents/Act101_Bulletin.pdf. See the following link for the approved forms: http://www.adoptpakids.org/Forms.aspx.
Nevertheless, Pennsylvania adoption and related birth records are far from open. Older adoption records (pre-1930s) and substitute adoption records may often be found through forensic genealogical methodology. In addition, DNA testing for Y-DNA, mtDNA and Autosomal DNA may be helpful in leading to the discovery of adoptees' relatives. However, additional Pennsylvania legislation is required to make the process easier and more transparent in Pennsylvania.
[1] See, e.g., Act of 19th April 1794, § III, 3 Dallas 521, 3 Smith 143, Purdon's Digest of the Laws of Pennsylvania (1824), 372-373. Remote intestate heirs who have never known the decedent or have had little contact with decedent have been referred to as "laughing heirs." MacCarthy Estate, 17 Pa.D.&C. 3d 600, 614, 30 Fid. Rep. 307, 321 (Phila. O.C. 1979); Verrall Estate, 12 Fid. Rep. 129, 132 (Phila. O.C. 1961).
[2] See Garrett Estate, 372 Pa. 438, 94 A.2d 357 (1953) (almost 2,000 claims were made against a 17 million dollar estate resulting in 2,000 hearings, an 115,000 page record, and 22 years of litigation).
[3] Act of April 24, 1947, P. L. 80, § 3, 20 P.S. § 1.3.
[4] Act of December 10, 1959, P.L. 1747, § 3. The current act is 20 Pa. Cons. Stat. Ann. § 2103(5). [See also, 12 Del. C. §§ 501 - 503 & 506; N.J.S.3B:5-3 to – 3B:5-7; NY CLS EPTL § 4-1.1.] Genealogists refer to the grandchild of an aunt or uncle as a "first cousin once removed." See American Genealogy: A Basic Course, 4th Edition, Revised (Arlington, Virginia: National Genealogical Society, 1996), 37-39.
[5] Verrall, 12 Fid. Rep. at 133 (emphasis in original).
[6] See Intestate Succession - Probate, Estates and Fiduciaries Code, Fiduciary Review (February 2004), 2; and M. Paul Smith, Richard L. Grossman and James L. Hollinger, Pennsylvania Fiduciary Guide, A Handbook for Executors and Administrators, Appendix 5, 425 (5th Rev. Ed., 2001).
[7] In other states such as New York, these issues may arise at the outset of probate or administration due to the necessity of giving notice to potential distributees. See, e.g., NY CLS SCPA § 1403.
[8] The author has been successful in locating an heir in an unknown heir case where he was retained 25 years after a decedent's death; however, the decedent's sister and niece died after decedent but before distribution, thus making the sole surviving heir a grandniece who could be termed a "laughing heir" as she never knew the decedent. Estate of Peters, O.C. No. 3314DE of 1984 (Phila. O.C. June 3, 2004).
[9] See, e.g., Phila. O.C. 13.3.A; and N.J.S.3B:5-5.1.
[10] In re Estate of Rosen, 2003 Pa. Super. 96, 819 A.2d 585 (2003); In re Estate of Alexander, 2000 PA Super 206, 758 A.2d 182 (2000); Atkinson Estate, 20 Pa.D.&C. 3d 700, 2 Fid Rep. 2d 79 (Phila. O.C. 1981).
[11] Shewchuk Estate, 444 Pa. 249, 282 A.2d 307 (1971) (fraud); Alexander, supra; In re Jones, 442 Pa. Super. 463, 660 A.2d 76 (1995) app. den. 543 Pa. 729, 673 A.2d 335 (1996).
[12] Annotation, Duty and Liability of Executor with Respect To Locating and Noticing Legatees, Devisees, or Heirs, 10 A.L. R.3d 547 § 2 (1966).
[13] Many national, state and local genealogical organizations and societies maintain paper and internet based lists of professional genealogists. E.g., membership lists are maintained by the following organizations: (a) The Association of Professional Genealogists at http://www.apgen.org; (b) The Board for Certification of Genealogists at http://www.bcgcertification.org; and (c) The International Commission for the Accreditation of Professional Genealogists at http://www.icapgen.org.
[14] Morse v. Illinois Department of Professional Regulation, 316 Ill. App. 3d 664, 668, 737 N.E. 2d 678, 681 (Ill. App., 4th Dist. 2000).
[15] See Rosen, 2003 Pa. Super. 96, P17; Alexander, 2000 Pa. Super. 206, P13; Atkinson, 20 Pa.D.&C. 3d at 728 (also providing a form of decree to retain the services of a genealogist to conduct an heir search); MacCarthy, 17 Pa.D.&C. 3d at 606, 30 Fid. Rep. at 313; Wallace Estate, 29 Fid. Rep. 262 (Montg. Co. O.C. 1979). For an example of the dangers of relying on an amateur genealogist, see Gray Estate, 5 Pa.D.&C. 3d 561 (Armstrong Co. O.C. 1978).
[16] Nelson v. McGoldrick, 127 Wn.2d 124, 129, 896 P.2d 1258, 1260-1261 (1995) (on summary judgment, the Washington Supreme Court remanded the question whether the 50 percent fee agreement was unconscionable).
[17] Carey v. Thieme, 2 N.J. Super. 458, 466, 64 A.2d 394 (1949) (non-lawyer heir hunter obtained power of attorney from beneficiary; heir-hunting activities are “inimical to the public policy of protecting beneficiaries of estates from imposition of unnecessary expense.”); International Heir Tracers of America, Inc. v. Rinier, 139 N.J. Super. 573, 354 A.2d 683 (1976); In re Butler’s Estate, 29 Ca. 2d 644, 650, 177 P.2d 16, 19, 171 A.L.R. 343 (1947) (heir hunter procured assignments and powers of attorney from beneficiaries that enabled the heir hunter to manage the probate proceedings and hire attorneys); In Re Estate of Rice, Deceased; Columbus Bar Association v. American Archives Association, 30 Unauthorized Prac. News 44 (1964 - 1965).
[18] In re Taylor, 216 B.R. 515, 527 (Bankr. E.D. Pa. 1998), app. den. 220 B.R. 854 (E.D. Pa. 1998).
[19] 22 P.S. § 12(b) (2 & 4). [See also, 24 Del. C. § 1302; N.J.S.45:19-9; and NY CLS Gen Bus §§ 70 & 83.]
[20] 22 P.S. § 25; N.J.S.45:19-9; and NY CLS Gen Bus § 83.
[21] Landi v. Arkules, 172 Ariz. 126, 133-134, 835 P. 2d 458, 465-466 (Ariz. App. 1992).
[22] Estate of Wright, 90 Cal. App. 4th 228, 108 Cal. Rptr. 2d 572 (2001) (the California licensing act for private investigators included a provision almost identical to that cited above at 22 P.S. § 12(b)(2), but the investigator in that case did not perform the work in California); Morse, 316 Ill. App. 3d at 669, 737 N.E.2d at 682 (the court left the issue for the legislature to resolve).
[23] For a case which resulted in an attorney who was retained by an heir finder firm being disbarred for his related conduct, see In the Matter of Weinstein, 4 A.D.3d 29, 772 N.Y.S.2d 275 (Supreme Court of N.Y., App. Div., 1st Dept. 2004). See also, Sullivan v. Committee of Admissions, 395 F.2d 954 (D.C. Ct. App. 1968) (private reprimand of attorney for representing heir search firm and heirs where champerty, solicitation of clients, and conflict of interest were engaged in; Supplemental Opinion on Rehearing reversed and remanded for further proceedings). See also, American Archives' Counsel v. Bittenbender, 345 A.2d 487 (D.C. Ct. App. 1975).
[24] In Keen Estate, 56 Pa. D.&C.2d 470 (Phila. O.C. 1972), an heir searcher hired by an executor presumed to be on a contingency fee agreement refused to disclose the name and address of a beneficiary until such beneficiary signed the fee agreement.
[25] Pa.R.P.C. 3.4(b); N.J.RPC 3.4(b); and N.Y.RPC 3.4(b).
[26] See Mohn v. Hahnemann Medical College & Hospital, 357 Pa. Super. 173, 515 A.2d 920 (1986), app. den. 515 Pa. 582, 527 A.2d 542 (1987); Reed v. Philadelphia Transp. Co., 171 Pa. Super. 60, 90 A.2d 371, 33 A.L.R.2d 1166 (1952).
[27] Atkinson Estate, 2 Fid Rep. 2d 79, 20 Pa.D.&C. 3d at 715 & 728 (Phila. O.C. 1981); McIlwain’s Estate, 27 Pa.D.&C. 619 (Phila. O.C. 1936); and In re Estate of Rice, 24 Ohio Op. 2d 379, 92 Ohio Laws Abs. 449, 193 N.E.2d 566 (P. Ct. 1963). Cf. Sparne v. Altshuler, 80 R.I. 96, 90 A.2d 919 (1952) (Court upheld one-third contingency fee agreement in consideration of providing information of a genealogical nature in order to establish plaintiff’s right to inheritance); and Estate of Katze-Miller, 158 Wisc. 2d 559, 463 N.W.2d 853 (1990) (heirship search and investigative, including attorney services, in exchange for a 40% interest in the heirs distributive share, held not to be champertous; strong dissent); R. Davis, Annot., "Heir-hunting," 171 ALR 351 (Lawyers Cooperative Publishing Co., 1947).
[28] Atkinson Estate, 2 Fid Rep. 2d 79, 20 Pa.D.&C. 3d at 715; In re Estate of Devlin, 182 A.D.2d 322, 588 N.Y.S.2d 316 (1992) (Surrogate reduced heir hunter’s fee from 40 to 15 percent).
[29] Estate of Hodge, 22 Pa.D.&C. 4th 458, 15 Fid. Rep. 2d 1 (Chester Co. O.C. 1994) (heir locator company took the case on speculation without entering into a contract with the estate or heirs).
[30] 72 P.S. §§ 9127(1) & 9130(3).
[31] In re Estate of Merryman, 669 A.2d 1059, 1062 (Pa. Cmwlth. Ct. 1995).
[33] Id. at 1063 (the court permitted a percentage of the attorneys fees to be deducted for inheritance tax purposes in a mixed benefit case).
[34] E.g., D.R.E. Rule 101 et seq. (Delaware Uniform Rules of Evidence); N.J. R. Evid. & N.J. R. 4:80-7; NY CLS CPLR Article 45; and Pa.R.E.
[35] See Rosen, 2003 Pa. Super. 96, PP24-35; and Frazier Estate, 75 Pa. D.& C. 577 (Phila. O.C. 1951) (“The information contained in the book, “The Stricklers of Pennsylvania”, was clearly hearsay and not admissible because the authors were alive, and, therefore, presumably could have appeared at the hearing. Moreover, there were a number of patent errors in the book which were brought out in cross-examination …).
[38] Id. at P14 (dictum).
[39] MacCarthy, 17 Pa.D.&C. 3d at 612, 30 Fid. Rep. at 319 (Phila. O.C. 1979). See also, Davis Estate, 365 Pa. 605, 607, 76 A.2d 643 (1950) (“The burden is always upon a claimant to prove kinship to a decedent by a fair preponderance of the credible evidence.”).
[40] Estate of Bryant, 176 Pa. 309, 321-322, 35 A. 571 (1896), mod. on other grounds, 180 Pa. 192, 36 A. 738 (1897). See also Helen Hinchliff, Estate Fraud and Spurious Pedigrees, 19 Genealogical Journal 22 (Numbers 1 & 2, 1991).
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Caveat: This article does not provide legal or tax advice and should not be relied upon as anything other than a starting point for research and information on the subject of missing and unknown heir law and procedure.
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