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** This article has been revised from its original version which was published on October 23, 2019.
In New York, if an individual passes away without a Last Will and Testament, or if the will is determined to be invalid, then the decedent’s assets are subject to the state 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 part of your estate and must be distributed according to the laws of intestacy in New York.
Under the laws of intestacy, only the decedent’s heirs-at-law (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 predeceased siblings, if any (nieces and nephews)
- “Issue” refers to lineal descendants, such as children, grandchildren, great-grandchildren
- Grandparents and issue of predeceased grandparents (first cousins)
- Great-grandparents and issue of predeceased great-grandparents (first cousins once removed)
If a decedent is survived by close family members, such as a surviving spouse, children, grandchildren, parents, or siblings, determining the distributees is fairly straightforward. However, when a decedent is survived only by remote relatives, it can be more complicated and require a Kinship Proceeding in the Surrogate’s Court in the decedent’s county of residence.
When is a Kinship Proceeding Required?
Kinship Proceedings may be required in a number of instances, for example:
- If multiple people claim the right to act as fiduciary (estate administrator) of the decedent’s estate, 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’s not clear who is a distributee
- When the closest living relative is a cousin or more distant next of kin
- If a county official (Public Administrator) is in charge of estate administration, and is required to account for and distribute assets, the court must determine the rightful distributees to settle and close the estate
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 they are actually distributees 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 results in a Kinship Hearing. The Kinship Hearing is essentially a small trial. Although the Surrogate’s Court in each county has its own specific requirements, the same rules of evidence and procedure 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 request the case be held before an Attorney Referee instead of a judge. Or, the judge may refer the case to a Referee.
When the hearing is completed, the Referee issues a report which is provided to the Surrogate judge for 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 require a new hearing.
Do You Need An Estate Planning or Probate Attorney?
In a Kinship proceeding, an experienced probate attorney or estate planning attorney in New York helps present witness testimony and documentary evidence to the court at the hearing. The court requires specific information regarding the decedent’s maternal and paternal family members. It may be necessary for many generations to be researched and evidence gathered and submitted, such as birth certificates, marriage certificates, death certificates, census records, etc.
An experienced estate planning attorney in New York may 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 are often key to a successful outcome. A detailed 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’s important to work with an experienced estate planning attorney in New York. At Russo Law, P.C., we offer professional services and advice when a family member dies without a will and probate or estate administration results in Kinship Proceedings. Contact the estate planning attorneys at Russo Law Group, P.C to review or create an estate plan containing a will or trust and learn how to avoid probate and potential Kinship Proceedings.
We invite you to take advantage of our comprehensive website as well as our free seminars and webinars to learn more about how Russo Law Group, P.C. can help provide you with peace of mind. Call to schedule a consultation at 1 (800) 680-1717.