New York Probate Lawyer Blog
There are many issues that arise concerning identifying the next of kin of a decedent. These issues arise in different contexts. If a decedent died and left a Last Will and Testament, the probate process requires that all of a decedent’s next of kin (distributees) be given notice of the probate proceeding. This is because distributees have a right to contest a Will. A probate petition lists the identity and interests of these persons. Distributees can execute a Waiver form consenting to the probate of a Will. Alternatively, a distributee will receive a Citation from the Surrogate’s Court setting a Court date to advise whether a Will Contest is intended.
In a probate case another kinship issue which may arise is whether a decedent was married. If so, a surviving spouse would be able to file for a spousal election if the spouse was disinherited in some manner. A spousal election ensures that a surviving spouse receives at least one-third (1/3) of a decedent’s net estate. Determining a right of election amount can be complicated. The New York Probate Lawyer Blog has published many articles relating to probate, estate settlement and also spousal right of election.
Determining kinship is also essential with regard to intestate estates where there is no Will. In these matters, a decedent’s distributees inherit an estate pursuant to EPTL 4-1.1 entitled “Descent and distribution of a decedent’s estate.” Often, there are disputes among distributees as to which person or persons are to be appointed as an estate administrator. SCPA Section 1001 entitled “order of priority for granting letters of administration” designates the distributees who would have standing to be appointed.
Regardless of the situation, determining the identity of distributees is not always easy. A decedent may have been estranged from his family. Also, family members may possibly live out of state or even in a foreign country. Researching and finding unknown or missing heirs can be difficult. A genealogist may be needed. Proving kinship may require obtaining birth, marriage or death records and other proof in the form of documents or witnesses. My website contains additional information regarding these matters. I have seen investigation reports from a genealogist which were hundreds of pages long. The importance of determining kinship was recently shown in a Queens estate case entitled “In the Matter of the Judicial Settlement of the Account of the Proceedings of Lois M. Rosenblatt.” This case was decided by Queens Surrogate Peter J. Kelly on October 1, 2024. In Rosenblatt, the Queens County Public Administrator had submitted a final estate account for settlement. In connection with this proceeding, it was necessary to have a kinship hearing. The hearing was held by a Court Attorney / Referee. After a determination was made, one of the alleged distributees objected that another alleged distributee was included as part of the decedent’s family. After a review of the proceedings and the evidence by the Surrogate, it was concluded that based upon a genetic marker test alone, the determination by the Court Attorney / Referee was justified.
As can be seen, establishing the next of kin of a decedent is of paramount importance in settling an estate. These matters often require a professional genealogist and the guidance of an experienced estate lawyer. I have represented clients in estate cases in New York for over forty (40) years. Call Me Now for a free confidential review of your estate matter. We offer reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.