Cousin Cases and NY Kinship Proceedings

When a person dies in New York State without a Last Will and Testament, New York’s intestacy law, found in EPTL 4-1.1, governs who is entitled to receive the decedent’s property (otherwise known as their estate).  The New York Estates Powers and Trust law provides an order of priority in which the decedent’s relatives may inherit their estate.

If a person passes away with no spouse, children, grandchildren, parents, siblings, nieces or nephews or grandparents, this is where things can get complicated and often quite interesting.  In such cases it is the issue (or descendants) of the decedent’s grandparents who become entitled to inherit.  This may be aunts and uncles, but is more likely to consist of cousins, which is why kinship proceedings are sometimes referred to as Cousins Cases.  When cousins are the closest of kin, a kinship proceeding is necessary to determine who the rightful heirs really are. Before the Surrogate’s Court can allow the estate’s fiduciary to distribute the decedent’s estate, it must be made clear that the claimants or alleged heirs are actually those entitled to inherit.

In a kinship proceeding, the burden of proof is placed on the claimant - the person claiming to be the decedent’s legal heir.  They must prove that they are the estate’s rightful distributee by a legal standard called a preponderance of the evidence.  A kinship hearing will be held as part of the proceeding, and it is conducted largely like a non-jury trial.  The claimant will gather proof of their blood relationship to the decedent through records, documentation and statements from disinterested witnesses.  These records will include birth certificates, marriage certificates, death certificates, census records, immigration records, church records, court records and military records.  A disinterested witness is someone who knew the decedent and thus has knowledge of their family but is not entitled to inherit.  This may be a more distant family member, a person related by marriage, or a longtime friend or neighbor.  Their testimony may be used to strengthen the claimant’s case when combined with documentary evidence. A successful kinship claimant will also likely have hired a genealogist to track down the necessary records that allow the claimant to show that they are the closest living relative (or among a class of the closest living relatives) of the decedent.

In addition to the claimant, the other parties to a kinship proceeding will include the estate’s fiduciary (the person handling the estate), which is often the Public Administrator, and a Guardian ad Litem who is appointed to represent the interests of unknown distributees who may not have knowledge of the proceeding or even of the decedent’s death.  After the hearing is concluded, a report will be issued by the referee to the Surrogate’s Court judge who will either confirm it in whole or in part or reject it and order a new hearing.    The Judge will then issue a binding order based on the feferee’s report and the report of the Guardian at Litem.

An estate attorney with experience in kinship proceedings will provide a claimant with the greatest chance of success in proving their relationship to the decedent and their right to inherit from the estate.  The burden of proof placed on claimants is high and competent counsel is essential.

Call the Law Offices of Roman Aminov, P.C. for a free consultation to discuss your kinship matter.

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