New York Kinship Proceedings Require the Help of Estate Lawyers

New York kinship cases occur throughout the Surrogate’s Courts. Queens, Manhattan, Brooklyn, Bronx, Nassau, Suffolk and Westchester Counties all have a separate Surrogate’s Court that handles these proceedings. The need to determine kinship can arise for different reasons. The most common occurrence is when a person dies and no one steps forward to probate or administer the estate or the closest living relative is a cousin or more distant next of kin. A decedent’s next of kin are known as “distributees” Kinship cousin cases are very common. In these cases a county public official called the Public Administrator will step-in and administer the decedent’s estate. At the end of the administration process, the Public Administrator will commence proceedings in the Surrogate’s Court where kinship (i.e., the “distributees”) can be determined. Distributees are the persons who may rightfully receive the decedent’s assets.

New York Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” sets forth the persons who are entitled to inherit an estate where there is no Will. This is known as an Intestate Estate. The statute provides for distribution to a decedent’s spouse and children (or the children’s descendents) and then to parents, issue of parents (i.e., brothers and sisters), and then to more distant relatives such as grandparents and issue of grandparents. As can be seen, determining a person’s distributees as derived from long deceased grandparents who may have lived in many different countries can be quite difficult.

Kinship proceedings can be lengthy and complex. A good probate or kinship attorney is needed to help present witness testimony and documentary evidence to the Court. The Court will require specific information regarding the decedent’s family on both the maternal and paternal side. Many generations of family members may have to be researched and certified documents such as death records, marriage and birth certificates, census records and obituary notices usually need to be obtained. Very often it is necessary to hire a professional genealogist to locate witnesses, assemble the certified documents and search for missing heirs whose identity must be provided for the Court to complete the Family Tree. Evidence may be required to be obtained from foreign countries.

The person who is claiming a right to receive estate assets has the legal burden of proving his or her kinship status. 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 3 years following the decedent’s death and the Court is satisfied that a thorough search has been conducted.

Kinship issues also concern many other areas of New York Trusts and Estates. For example, Estate planning attorneys need to obtain information concerning a person’s distributees when preparing a Last Will or a Living Trust so that an estate plan can be properly formulated. Also, possible difficulties with probate proceedings and locating lost heirs may need to be anticipated and addressed in the estate plan.

New York Probate Attorney Jules M. Haas has helped many clients over the past 30 years resolve issues relating to probate, kinship, estate settlement and other estate proceedings throughout New York including Queens County probate. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.