In New York, if an individual passes away without a Last Will and Testament, or if the Last Will and Testament is determined to be invalid, then the decedent’s assets will be subject to the laws of intestacy. Any assets held in the decedent’s name alone, without any beneficiary designations, joint owners with rights of survivorship, or not held in trust, are considered assets of your estate and must be distributed in accordance with laws of intestacy in New York.
Under the laws of intestacy only the decedent’s heirs-at-law, known as the “distributees” have the right to inherit your estate assets.
A decedent’s distributees are determined in the following order:
- Spouse and children.
- If a decedent leaves a spouse and children, the spouse and children are considered distributees.
- If there is only a spouse and no children, the spouse is the sole distributee.
- If there are children and no spouse, the children are the distributees.
- Siblings and issue of pre-deceased siblings, if any (nieces and nephews)
- Note: “Issue” refers to lineal descendants, such as children, grandchildren, great-grandchildren.
- Grandparents and issue of predeceased grandparents (1st cousins)
- Great-grandparents and issue of predeceased great-grandparents (1st cousins once removed)
If a decedent is survived by close family members, such as a surviving spouse, children, grandchildren, parents, or siblings, determining the distributes is fairly straight forward. However, when a decedent is survived only by more remote relatives, it can be more complicated and require a Kinship Proceeding in the Surrogate’s Court of the county in which the decedent resides.
When is a Kinship Proceeding Required?
Kinship Proceedings may be required in a number of instances, for example:
- If there are multiple people claiming the right to act as fiduciary (also known as the “administrator”) of the decedent’s estate, and the Court needs to know how these people are legally related to the decedent to determine who has a right to act as administrator.
- When it is not clear who is a distributee.
- When closest living relative to a decedent is a cousin or more distant next of kin
- If a county official, called the “Public Administrator,” is in charge of administering the estate, and is required to account and distribute assets. Before the Public Administrator can settle its account and close the estate, the court must determine who are the rightful distributees of the decedent.
How Does a Kinship Proceeding Work?
The people who claim to be distributees are called “alleged heirs” or “claimants”. The alleged heirs have a legal burden to prove in the proceeding that they are actually distributes and have a right to inherit. The court will appoint a Guardian Ad Litem who is responsible for representing the interest of the unknown heirs.
What is a Kinship Hearing?
The Kinship Proceeding will result in a Kinship Hearing. The Kinship Hearing is essentially a small trial. Although the Surrogate’s Court in each county will have their own specific requirements, the same rules of evidence and procedure that are followed during a trial in New York are followed in a Kinship Hearing.
The Kinship Hearing is generally more informal than a trial, and the parties sometimes stipulate to have the case held before an Attorney Referee, instead of the Judge. Or, the Judge may simply “refer” the case to a Referee on its own initiative.
When the hearing is completed the Referee will issue a report which will be provided to the Surrogate Judge for her consideration. Although the Surrogate Judge usually agrees with the Referee’s findings and confirms, it has full discretion to reject or accept the report wholly or in part, modify the report, or to require a new hearing.
Do You Need An Attorney?
In a Kinship proceeding, an experienced kinship attorney is needed to help present witness testimony and documentary evidence to the Court at the hearing. The Court will require specific information regarding the decedent’s maternal and paternal sides of the family. It may be necessary for many generations of family members to be researched and evidence such as birth certificates, marriage certificates, death certificates, census records, etc. will need to be gathered and submitted into evidence.
It is common for an experienced attorney to recommend that the alleged heirs hire a professional genealogist to perform research, investigate, write a report, and testify at the Hearing. The evidence and testimony provided by a professional genealogist can often be the key to a successful outcome. A well-thought-out and accurate Family Tree is also important to help prove the kinship and close the classes of distributees.
Given the complexity of the hearing and the very technical rules of evidence in a kinship proceeding, it is important to work with an experienced attorney.