How Eastern European Heirs Won Their Inheritance in In re Estate of Rosen
In In re Estate of Rosen, the Pennsylvania Superior Court overturned a lower court and found that an estate administrator’s failure to diligently investigate heirs in Eastern Europe or rebut their credible, authenticated foreign language evidence was a breach of fiduciary duty, requiring the estate to be shared with foreign cousins.
Austria-Hungary, also known as the Austro-Hungarian Empire or the Dual Monarchy, existed between 1867 and 1918 in Central Europe and also included territories that extended into parts of Eastern Europe. Countries in Eastern Europe that were part of the Austro-Hungarian Empire include Hungary, parts of modern-day Slovakia, the Czech Republic, Ukraine, Poland, Romania and Croatia. Foreign nationals from Eastern European countries, such as Slovakia, Ukraine, Poland, Czech Republic, Hungary, Romania, Moldova, Bulgaria, Belarus, and from the Baltic States, such as Estonia, Latvia, and Lithuania, occasionally appear in American courtrooms as claimants in cross-border probate cases and in U.S. probate cases. The administration of an estate is often a complex and emotionally charged process. When an individual dies without a will—intestate—the process becomes a legal puzzle, guided by statutes of descent and distribution to identify the rightful heirs. This puzzle becomes exponentially more difficult when potential heirs reside overseas, separated by language, legal systems, political borders, and disparate record-keeping systems. The Pennsylvania Superior Court’s 2003 decision in In re Estate of Rosen, 819 A.2d 585 (Pa. Super 2003), stands as a landmark ruling that recalibrated the burdens of proof in heirship cases and reinforced the fiduciary duties of estate administrators to international claimants.
An Intestate Estate and Emerging Heirs
The case of Doris Rosen’s estate is a classic tale of a fragmented family, a story common in the annals of American immigration. Doris Rosen died intestate in Philadelphia in 1995, having never married and without children. Her only sibling had predeceased her. Under Pennsylvania’s intestacy laws, her estate would pass to her closest living relatives. The administratrix, Goldie Rosen Ostroff, also a first cousin of the decedent, initially proposed that the entire net estate be distributed to herself as the sole closest living relative.
This proposal, however, was soon challenged. Two groups of objectors emerged. The first were U.S.-based first cousins, Gloria Robinson and Wilfrid Rosen, whom the estate later conceded were rightful heirs. The second group, the central figures in this case, were the “Eastern European claimants”: Mark Fastovsky (who had immigrated to the U.S. in 1992) and Yakov Lemberberg, Leonid Rigey, and Ilya Rigey (the son of a deceased first cousin), all residing in the former Soviet Union. They claimed to be the children of decedent’s aunts and uncles who had remained in Eastern Europe, thereby establishing themselves as first cousins entitled to an equal share of the estate.
The Orphans’ Court, in its initial adjudication, overruled the objections of the Eastern European claimants. The court’s reasoning hinged on two primary grounds: first, a categorical rejection of the extensive documentary evidence from Ukraine and Russia presented to prove kinship; and second, the failure of the claimants (with the exception of Fastovsky) to appear in person to testify, which the court deemed necessary for cross-examination and credibility assessment. The claimants appealed, setting the stage for the Superior Court to address questions about evidence, procedure, and fiduciary responsibility in modern probate practice.
The Appellate Standard of Review: A Level Playing Field
The Superior Court began its analysis by clarifying the appropriate standard of review. Typically, an appellate court in an equity matter is bound by the chancellor’s findings of fact, especially those regarding witness credibility, as the chancellor has the unique opportunity to observe demeanor firsthand. However, this case presented an unusual circumstance: the chancellor who issued the final adjudication, Judge Bonavitacola, had not presided over the evidentiary hearing. That task had fallen to Judge O’Brien.
Citing Estate of Demczuk, the Superior Court held that where the adjudicating chancellor did not hear the witnesses testify, the appellate court is “in as good position as the [chancellor] to judge the probative weight of evidence.” Consequently, the court’s review was not deferential but was “limited to a determination of whether there was an error of law and whether the chancellor’s factual findings are supported by sufficient evidence.” This procedural nuance empowered the appellate court to conduct a fresh, rigorous examination of the evidence and the legal conclusions drawn from it.
The “Clear, Precise, and Definite” Standard: A Misapplied Doctrine?
A central pillar of the estate’s defense, and the Orphans’ Court’s ruling, was the venerable standard from Link’s Estate (1935). The Link’s court famously stated that in intestacy cases, it is only by the “grace of the commonwealth” that heirs inherit, and the Commonwealth reserves the right to take the property if no one can inherit. Therefore, “to defeat the claim of the commonwealth, the evidence must be so clear, precise, and definite… as to satisfy the court… that the relationship claimed existed.”
The administratrix argued that the Eastern European claimants were required to meet this high burden. The Superior Court, however, identified a critical distinction. The claimants in Rosen were not attempting to defeat the Commonwealth’s claim; the Commonwealth was not a party, and its claim had already been defeated by the admission that first cousins existed. Instead, the appellants were seeking to include themselves within a class of heirs whose existence was, at least implicitly, acknowledged.
The court found it significant that the estate’s counsel had admitted at the hearing that decedent had aunts and uncles who remained in Eastern Europe. The estate’s challenge was not primarily to the existence of this class of first cousins, but to the identity of the appellants as members of that class. Quoting Demczuk, the court noted that the “clear, precise, and definite” standard is “inappropriate where the existence of an heir is uncontested, and only claimant’s identity as the heir is at issue.” While the court assumed arguendo that the higher standard might apply, its analysis signaled a more nuanced approach, suggesting that the burden of proof is context-dependent and should not be an insurmountable barrier when the existence of a heir-class is reasonably established.
The Admissibility of Foreign Documents: A Triumph of Procedure over Presumption
The most impactful aspect of the Rosen decision was its treatment of the appellants’ foreign documentary evidence. The claimants had presented a trove of foreign records—birth certificates, marriage certificates, and death certificates—obtained and authenticated by a professional Ukrainian genealogist. The Orphans’ Court had rejected this evidence outright, expressing skepticism about “reconstructed” records from former Soviet states.
The Superior Court systematically rejected this conclusion, grounding its analysis in Pennsylvania’s explicit statutory framework. The court highlighted 42 Pa.C.S.A. § 6105(b), which states that the official acts of foreign notaries, if authenticated per § 5328, “shall be prima facie evidence of the matters therein set forth.” Section 5328(b) provides a clear mechanism for proving foreign official records using attested copies accompanied by a final certification from a designated U.S. or foreign consular official.
The court found that the claimants had meticulously complied with these procedures. Their genealogist, fluent in Eastern European languages, testified in detail about her process of obtaining and authenticating each foreign language document. She explained that the post-Soviet states had maintained the former regime’s record-keeping procedures and even offered to provide the estate with copies of the relevant local authentication rules. Crucially, the estate’s counsel admitted he had “been given documents all along” but complained they were in foreign languages, and he could not “confront” them.
The Superior Court found this argument from the estate “unpersuasive.” It emphasized the estate’s fiduciary duty to conduct a diligent search for heirs. The estate had made no effort to hire its own legal translators and genealogists to investigate the claimants’ evidence. The statutes, the court reasoned, create a procedural pathway for admitting foreign records and place the burden on the opposing party to “contradict by other evidence” the prima facie case established by those documents. The estate’s passive refusal to engage with the evidence was not a valid litigation strategy but a dereliction of its fiduciary duty. By failing to present any evidence to challenge the authenticity or accuracy of the documents, the estate failed to rebut the claimants’ prima facie case.
The Personal Appearance Rule: Adapting an Old Doctrine to a Globalized World
The Orphans’ Court had also erred, in the Superior Court’s view, by insisting that the foreign claimants appear in person. The estate relied on older cases like Estate of Mackarus, which stated a general rule that a claimant “must appear before the orphans’ court personally.” The Superior Court again distinguished these precedents, noting that they involved claimants seeking to defeat the Commonwealth’s claim to an estate. The heightened requirement for in-person testimony in those “escheat” cases was designed to protect the Commonwealth’s substantial property interest.
In Rosen, where the dispute was between private parties over inclusion in an acknowledged heir-class, a more flexible approach was warranted. The court acknowledged that while in-person testimony is preferable, pedigree “may be proved by certain types of hearsay evidence under certain circumstances.” It pointed specifically to Pennsylvania Rules of Evidence 803(13) and (19), which create hearsay exceptions for statements in family records and reputation concerning personal or family history.
The evidence presented by the claimants was far from mere ex parte affidavits. It included:
• Properly authenticated foreign vital records.
• The live testimony of a professional genealogist who had met the claimants and vouched for their identities.
• The live testimony of Mark Fastovsky, who provided detailed, admissible family history under Rule 803(19) and attested to knowing the other claimants personally.
The court rejected the Orphans’ Court’s “leap-frogging” concern—that Fastovsky could only connect himself to Doris Rosen by first connecting himself to the other claimants—as a reason to dismiss his testimony. When viewed in conjunction with the properly admitted documentary evidence, Fastovsky’s testimony provided a credible and admissible link in the chain of kinship.
The Fiduciary’s Duty: The Unspoken Heart of the Case
Beneath the legal arguments about standards of proof and hearsay exceptions lies the core moral of the Rosen story: the paramount importance of the administrator’s fiduciary duty. The Superior Court expressed deep concern over the administratrix’s conduct. She had initially proposed to take the entire estate for herself. She provided no report detailing her investigation for heirs, as suggested by Pennsylvania Orphans’ Court Rule 13.3. There was no evidence she had notified the relevant consulates of potential heirs in Eastern Europe, as required by Rule 13.2, despite the decedent’s father’s U.S. immigration papers clearly stating his original surname (Rigey) and birthplace in Russia.
The court noted the irony of the estate challenging the claimants’ diligence when the administratrix had demonstrated so little herself. The “other first cousins” in the U.S. did not even bother to appear at the hearing. The estate’s attempt to shift the entire burden of proof onto the claimants, while itself presenting no witnesses or evidence, was a tactic the Superior Court would not condone. A fiduciary must “make an honest effort to determine those persons lawfully entitled to the estate,” and a passive, defensive posture in the face of credible evidence from putative heirs constitutes a failure of that duty.
Ensuring Justice for Heirs Across Borders
The Superior Court vacated the Orphans’ Court decree and remanded the case with instructions to amend the distribution, awarding one-seventh shares to each of the six surviving first cousins (including the appellants) and a share by representation to Ilya Rigey.
In re Estate of Rosen is more than a reversal of a trial court’s evidentiary rulings; it is a guiding precedent for probate practice in an increasingly interconnected world. It establishes several key principles:
1. The “Clear, Precise, and Definite” Standard is Contextual: It is primarily triggered when heirs seek to defeat the Commonwealth’s claim of escheat, not necessarily in every intra-heir dispute.
2. Statutory Procedures for Foreign Evidence are Paramount: Courts must adhere to the legislative framework for authenticating foreign records, and a party’s failure to engage with evidence properly presented under these rules is fatal to their challenge.
3. The Personal Appearance Rule is Flexible: While in-person testimony is ideal, modern evidence rules and the practical realities of international heirship cases allow for proof through authenticated documents, expert genealogical testimony, and admissible hearsay concerning family history.
4. The Fiduciary’s Duty is Active, Not Passive: An administrator cannot simply deny unknown claims but must conduct a diligent search for heirs and actively engage with credible evidence presented by claimants. A fiduciary who fails to do so risks having their objections overruled.
Ultimately, In re Estate of Rosen is a victory for both procedural fairness and substantive justice. It acknowledges that family lines extend across oceans and that the law must provide a practicable, fair-minded path for those heirs to assert their rights, while simultaneously holding estate administrators to the high standard of diligence and integrity their role demands. The case ensures that the doors of the Orphans’ Court remain open to legitimate heirs, no matter how distant their homeland.
Contact forensic genealogists, certified legal translators and court interpreters at All Language Alliance, Inc. to obtain certified translation of properly authenticated Apostille foreign records, including birth certificates, marriage certificates, divorce certificates, adoption certificates, death certificates; to hire deposition interpreters for on-site and remote depositions to interpret witness testimony provided in Slovak; Ukrainian; Romanian; Czech; Hungarian; Bulgarian; Croatian; Hebrew; Polish, and other languages of Eastern Europe and of the Austro-Hungarian Empire; to retain professional genealogists to find Eastern European heirs and to hire dual citizenship genealogists to obtain certified vital records of immigrant ancestors from the countries of the Austro-Hungarian Empire to use as evidence in your applications for citizenship by descent in Slovakia, Hungary and other Eastern European countries.
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