When thinking about how to establish kinship in New York, one is usually dealing with a situation where person dies in New York and they have not made a will (they are said to have died intestate). The heirs will need to be determined so that they can receive their rightful inheritances under New York intestate laws. Many times, an heir must prove that there are no other surviving heirs that have a superior right to inheritance of the decedent’s assets. When there is a question of whether a person is an heir, the family or heir must show proof or evidence of the relationship to the Court. The establishment of kinship may rely on a family tree, written testimony letters and oral testimony of friends, family and professionals such as genealogy experts.
Kinds of Documentation Required
The heir may request a kinship hearing with the New York Surrogate’s Court. It is generally recommended that the person hire a New York probate and estate attorney to represent the person at the kinship hearing because these matters are complex. The attorney can help the heir establish their kinship and prepare the necessary documents that must be submitted to the Court.
The person who has figured out how to establish kinship in New York has to state the nature of their relationship to the decedent. A testimony letter should including information regarding surviving heirs as well as predeceased heirs of the decedent. This may include providing information about maternal and paternal grandparents, parents, siblings, children, grandchildren, nieces and nephews, aunts and uncles and dates of birth and dates of death. The testimony letter should be signed and acknowledged before a notary public.
It may be necessary for the family or heir to submit birth certificates, death certificates or marriage records, and other legal reports to verify an heir’s relationship to the decedent, especially when there are no surviving close members such as a surviving spouse, children, grandchildren, parents or siblings of the decedent. Kinship relatives such as aunts and uncles and cousins may have a more difficult time proving their relationship to the decedent especially if they are distant cousins.
What Happens at the Kinship Hearing?
Prior to the kinship hearing, the attorney can help the family or heir establish the heir’s relationship by hiring private investigative agencies and a genealogist to prepare a family tree. It may also be necessary to provide DNA test results. At the hearing, the attorney will represent the family or heir. The Court will review the documentation to determine if the heir has a right to inherit the decedent’s assets. The Court will listen to oral testimony of witnesses in making their determination as well. The administrator of the estate appointed by the court will then be ordered to distribute the estate assets after any creditor’s claims and/or estate taxes have been paid.
Why Do I Need to Prove Kinship in the First Place?
When a person dies without a will (intestate) and has no close relatives, the distant relatives will have to figure out how to establish kinship in New York. What happens to the estate is often unpredictable, and here is why. Article 4 of the New York’s Estates, Powers and Trusts Law governs intestate rules. NY default distribution rules prioritize the potential beneficiaries by consanguinity. First: A spouse receives $50,000 plus half of the remainder, shared with deceased children. Then a spouse gets everything when deceased had no children, followed by the children getting everything when no living spouse. Parents inherit when there is no children or spouse. And if no parents, spouse or children—to each sibling and their lineage, nieces and nephews. Next is grandparents and lineage of their children (the aunts and uncles), followed by the great-grandchildren of grandparents—including first cousins once removed! Since the distribution is dependent on lineage, it is certainly possible that the relationship can get even more tenuous than a first cousin. The law goes on to clarify that half-blood relatives are treated as whole blood, that children conceived by the decedent but born after death are treated in parity with other children, and that the rules for adoptive children are governed by a different statute.
The problem here, for the state is threefold. First, New York is rightfully suspicious of tenuous relationship claims; and makes people prove it up. Second, the state cannot release the estate prematurely—lest a closer-kin exists. Third, the issue of the division of assets as you can have cousins from various sides claiming the inheritance.
The State of New York accomplishes these tasks through what is known as a kinship proceeding. The state will first appoint what is known as guardian ad litem—someone representing the undetermined beneficiary. The guardian’s responsibility is due diligence to locate potential relatives. What if the guardian knows of a potential relative but does not know their whereabouts? In such cases, there are a few presumptions courts use. If three years pass since anyone heard from that person and a diligent search has been made, the presumption is that they are dead. Three years is also adequate if no one hears from them since the decedent’s passing. Another presumption is if a relative would be 100 years old, they are presumed deceased.
Meanwhile, the distant relatives have the burden of establishing kinship, to prove lineage to the court in a kinship proceeding. This proof requires considerable evidence gathering and could include: witnesses, family heirlooms, pictures, DNA results, among others. This part is complex, and an estate lawyer should be consulted—as a relative has only one shot to prove their connection to the decedent in court.
Kinship for Paternal and Maternal Relatives
The case of in re Judicial Settlement of Accounts of Mosey sets a nice example. In Mosey, a person died intestate, with no close family, holding a net estate of approximately $265,000. At the kinship proceedings, nine paternal cousins and two maternal cousins claimed part of the estate. Two witnesses testified for the maternal claimants and three for the paternal side. The maternal side sufficiently proved through presumptions and via disinterested witness testimony that they are indeed first cousins, the closest kin—and judge awarded them half of the estate. On the parental side, the judge found that similar burden of proof has been met to prove they are cousins. However, here, the judge found their evidence “to close the classes of paternal aunts, uncles and cousins is inadequate and does not sustain their burden . . . “. The judge refused to give over half the estate to the paternal side, arguing that the potential for closer relatives freezes the said distribution. The judge distributed half the estate to the two maternal cousins and half to the state for safe keeping. It is unclear what happened next. It could be that the paternal cousins waited out the three-year presumption period and petitioned the court again or that a relative with closer consanguinity appeared to snag the inheritance. But in this situation, it is at least fortunate that relatives benefit. What happens when not even cousins can lay claim on the estate? The estate escheats and the property goes to New York State.
Kinship proceedings can be unpredictable. It also could set maternal and paternal relatives against each other in a battle of the estate. This kinship article should serve as a cautionary tale for people with assets to have a last will and testament. Additionally, if you are a relative of the deceased who died intestate, do not go into this alone.
If you want to know how to establish and prove kinship in New York, a competent New York attorney can help you not only lay out the proper foundation as a beneficiary in a kinship proceeding, but also to advise you if you are wasting your time and money in such pursuit. If you would like to speak to me, I can be reached at (212) 233-1233.
 In re Judicial Settlement of Accounts of Mosey, 880 N.Y.S.2d 225 (Sur. 2008).
 SeeMatter of Whelan, 461 N.Y.S.2d 398, 399 (1983), aff’d, 62 N.Y.2d 657 (1984).
 In re Mosey, 880 N.Y.S.2d 225.