Articles Posted in Kinship

The initial inquiry when a person dies is whether or not the decedent has a Last Will and Testament.  Where a Will exists, a probate proceeding is commenced in the Surrogate’s Court.  Assuming the Will is admitted to probate, the terms of the document control the appointment of an executor and the distribution of estate assets.  Will contests and other issues regarding jurisdiction may delay the probate process.

In situations where there is no Will, the procedure is to obtain letters of administration in an intestate estate.  The appointment of an administrator is controlled by Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration.”  Priority of appointment is given to the closest surviving next of kin, also known as distributees.  Distribution of the assets of the estate is also provided for the closest surviving distributees.  Estates, Powers and Trusts Law Section 4-1.1 sets forth the priority of distribution.  The New York Probate Lawyer Blog has discussed the many issues and aspects of both probate and intestate administration proceedings in the Surrogate’s Court.

One of the basic issues in any estate case is determining the identity of a decedent’s distributees.  Figuring out a person’s next of kin, particularly in an intestacy case, directly affects the appointment of the administrator and the distribution of assets.  Next of kin identity may be very hard to determine.  A decedent may not be survived by any close relatives such as a spouse or children.  Also, a person may not have had much contact with extended family for decades, and family members may reside in other states or countries.  Where kinship is unclear, the Court may need to engage in estate litigation and require a kinship hearing.  Since these matters often require testimony and family history documents such as death, birth and marriage records, a professional genealogist may be needed.

There are many instances where a person dies intestate, without a Last Will and Testament.  When this occurs, a decedent’s estate is distributed to his next of kin or distributees pursuant to the priorities established under Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.”  The New York Probate Lawyer Blog contains many articles concerning intestate estates and the appointment of administrators in these cases.

Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration” sets out the persons who are entitled to be appointed as estate administrator when there is no Will.  Of course, if a person leaves a Will, the Will provisions provide for the appointment of executors which typically negates the need to rely on SCPA 1001 for the appointment of a fiduciary.  Preparing a Will which then is probated avoids some of the issues in Surrogate’s Court relating to intestacy.  The presence of a Will also may facilitate estate settlement.

When there is no Will and the identity of a decedent’s distributees are unknown at the outset, generally, the Surrogate will appoint a local public official called the Public Administrator to administer the decedent’s estate.  This may also occur when the closest known next of kin are cousins or more distant relatives.  While kinship issues may arise in probate proceedings, usually there is a nominated executor who can handle estate affairs while the kinship issues are determined.

The New York Surrogate’s Courts are presented with many different types of proceedings.  Those proceedings include probate cases, intestate administration matters and accounting proceedings, just to name a few.  There is a separate Surrogate’s Court located in various counties throughout the state.  For example, there is the Queens County Surrogate’s Court, Kings County or Brooklyn Surrogate’s Court, New York or Manhattan Surrogate’s Court and the Bronx Surrogate’s Court.

The various matters that appear for determination invariably involve the identification of a decedent’s next of kin, also known as distributees.  For instance, in a probate proceeding, the petitioner must identify, by name and address, the decedent’s distributees.  This information is set forth in the probate petition.  The decedent’s distributees must be made a party to the proceeding and unless they consent to the probate of a Will, they must be served with a Citation.  These parties have a right to contest a Will.

When a decedent dies intestate without leaving a Last Will, distributees have a number of rights.  First and foremost, pursuant to Estates, Powers and Trusts Law (“EPTL”) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate,” next of kin have the right to inherit an estate based upon the priority established in the statute.  Also, Surrogate’s Court Procedure Act (“SCPA”) Section 1001 provides for a list of persons who have priority to be appointed as the estate administrator.  When a decedent leaves a Will, the provisions of the document usually provide for nomination of an Executor.  However, when someone dies without a Will, the New York estate laws provide as to whom will act as the estate administrator.

Time and again, the New York Probate Lawyer Blog has published articles discussing the manner in which the issue of kinship can affect estate administration.  The reason kinship is important is because in both probate and intestate estate cases, the Court must receive complete information regarding a decedent’s distributees.

The probate process necessitates full kinship information because a decedent’s distributees have a right to be notified about a Last Will and Testament being filed with the Surrogate’s Court for admission to probate.  Distributees can either execute a Waiver and Consent form or they must be served with a Probate Citation.  If the distributees feel that the propounded Will is invalid, they can file objections.  Objections to probate can be based upon improper execution, lack of testamentary capacity, undue influence, fraud or other grounds.  If the Will is not admitted to probate, the distributees would inherit the estate.

In intestate matters, kinship is essential since the decedent’s distributees are the individuals who have a right to receive a share of the estate.  Also, a distributee has the right to be appointed as an estate administrator.

In situations where a decedent does not leave a Last Will and Testament, the Court must be satisfied that it has received complete kinship information.  This is because both the appointment of the estate administrator and the ultimate distribution of estate assets are based upon identifying the decedent’s next of kin or distributees.

Most of the time, it will not be difficult to certify the identities of the decedent’s distributees.  There may be a surviving spouse and children born during the marriage.  However, particular issues arise when an alleged child is born outside of a marriage and the claims of inheritance relate to a deceased father.  In order to inherit from a deceased father, a child must prove paternity.  New York estate law provides a specific statute to cover this issue.  Estates, Powers and Trusts Law Section 4-1.2, entitled “Inheritance by non-marital children,” sets forth the details required for determining whether a non-marital child is a legitimate child of his father.  The New York Probate Lawyer Blog has published numerous articles concerning this issue.

Interestingly, the statute begins by providing that a non-marital child “is the legitimate child of his mother” for purposes of inheritance.  However, when it comes to paternity, there are a number of avenues of proof that can be utilized.  One of the most common ways of demonstrating paternity is by showing through clear and convincing evidence that the father “openly and notoriously acknowledged the child as his own.”

All proceedings regarding an inheritance from a decedent require that interested parties receive proper notice to protect their interests.  Whether an estate involves the probate of a Last Will and Testament or administration where there is intestacy, it is essential to determine the identity of a decedent’s heirs or distributees.  The New York Probate Lawyer Blog has published many articles regarding proof of kinship.

In both probate and intestate cases, estate lawyers may need to present evidence establishing that an individual is a distributee of a decedent or eliminating the possibility that any unknown heirs exist.  This evidence may need to be presented in an Affidavit of Due Diligence or at a formal Kinship Hearing in the Surrogate’s Court.  The manner by which kinship can be provided is through documents such as birth, death, and marriage records.  Also, testimony from disinterested parties who knew a decedent can establish such facts as marriages and the existence of children and other relatives.  The use of professional genealogical search firms can prove to be invaluable in difficult cases.

One area in estate settlement that is important in establishing potential kinship is where a claimant’s father was not married to the claimant’s mother.  Proof of kinship in these non-marital child cases is provided by Estates, Powers and Trusts Law Section 4-1.2 entitled “Inheritance by non-marital children.”  The statute provides that potential non-marital kinship can be demonstrated by various means including where there is an order of filiation showing paternity; a signed acknowledgement regarding paternity; proof that the father “openly and notoriously acknowledged the child as his own”; or through blood genetic marker testing.  Proof of paternal kinship in a New York estate case can be difficult.  An interesting example of the issues that can arise in such matters was recently shown in a Pennsylvania estate case entitled In Re Estate of David W. Ackley, Sr.  As reported by Max Mitchell in the Legal Intelligencer on August 12, 2020, an administrator of an estate sought to compel an alleged heir to take a DNA test.  The Court recognized that the alleged heir had the burden to prove kinship.  However, it refused to grant the Administrator’s request to force the claimant to take a DNA test.

A person who dies without a Last Will and Testament is said to have died intestate.  According to Estates, Powers and Trusts Law (EPTL) Section 4-1.1, entitled “Descent and distribution of a decedent’s estate,” there is a statutory priority as to the identity of the individuals who are entitled to inherit a decedent’s estate.  The statute provides, for example, that a surviving spouse is to receive $50,000.00 and one-half of the rest of the estate with the balance to be shared by the decedent’s issue (i.e., children and descendants).

In most cases, determining the identity and location of the next of kin or distributees, as referred to in the statutes, is not a problem.  Not only do these individuals receive a share of the estate, they may be entitled to serve as the estate Administrator.

In addition, since such persons must be given notice of the Surrogate’s Court proceedings, the Court requires that they be fully identified in the Court filings.  There are many circumstances that may be present when identifying a decedent’s next of kin which can delay and complicate estate settlement.  Here are a few of the more common problems.

When a person dies without a Last Will and Testament, he is deemed to have died intestate.  In these matters a petition must be filed with the Surrogate’s Court to have an Administrator appointed to handle estate affairs. A fiduciary is needed for estate settlement. To begin the process to have an Administrator appointed, reference needs to be made to a number of New York estate statutes.

To begin with, Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” must be reviewed to determine the identity of the individuals entitled to inherit the decedent’s assets.  As discussed in numerous posts in the New York Probate Lawyer Blog, the statute sets out a list of people who have priority rights to inherit, such as a spouse, children, grandchildren, parents and others.  The proof as to the right to inherit can be simple, i.e., the surviving spouse, or very complicated if the oldest living heir at law is a cousin or more remove relative.  Maternal and paternal family histories may need to be examined.

Another important statute is Surrogate’s Court Procedure Act (SCPA) section 1001 entitled “Order of priority for granting letters of administration.”  This law, also previously reviewed in this Blog, provides a priority list of the persons who are entitled to be appointed as the estate Administrator.  The priority list is essentially the same as the list of heirs in EPTL 4-1.1 except that in the list of distant heirs, such as a cousin, the appointment would typically be made to the local Public Administrator.

When a person dies intestate (without a Last Will), his estate is distributed according to the laws of intestacy. Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” , provides the statutory list of distributees entitled to receive a distributive estate share.

In order to receive a share, a potential heir must be able to demonstrate his relationship to the decedent. In many cases where the heirs at law are uncertain, the Surrogate’s Court will require a Kinship Hearing before it allows the distribution of the estate funds. The New York Probate Lawyer Blog has posted many articles regarding Kinship proceedings and intestate distribution. Continue reading

The settlement of an estate in New York invariably involves the kinship of a decedent. Whether the proceeding concerns the probate of a Last Will or an intestate administration, the Court requires full and specific information regarding the decedent’s next of kin (known as “distributees”).

In a probate case, the decedent’s distributees must be identified and given notice of the probate proceeding because these individuals have a right to contest the Will. Where a person dies intestate (without a Will) the statutes provide that the individuals who are entitled to serve as the estate Administrator and also inherit the estate are the decedent’s distributees. Continue reading