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Affidavit of Heirship and Family Tree in New York City
An affidavit of heirship is a sworn statement by a disinterested person who knew the decedent and the decedent’s family. Its purpose is to show the Surrogate’s Court who the decedent’s heirs are. Under 22 NYCRR 207.16, it is required in a New York petition for probate or administration when the decedent was survived by no distributee or by only one distributee, or when the distributees are grandparents, aunts, uncles, first cousins or first cousins once removed. It should not be confused with the small estate affidavit under SCPA 1310.
The affidavit must state how long the affiant knew the decedent and was familiar with the family, the affiant’s own relationship to the decedent, who the decedent’s distributees are, and that no other persons of the same or a nearer degree of relationship survived the decedent. Unless the distributee is the decedent’s spouse or only child, a family tree must be attached. The affidavit is signed under penalty of perjury.
The affidavit is not conclusive evidence of who the heirs are; it can be rebutted. An heir who was left out may contest it by filing a correction affidavit in the same proceeding, together with evidence of his or her relationship to the decedent, such as a birth certificate.
What Section 207.16 Requires
The rule, 22 NYCRR 207.16, describes two situations in which a petition for probate or administration needs this extra proof.
| Situation | What the petition must include |
|---|---|
| A party who must be served is a distributee whose relationship to the decedent is derived through another person who is deceased (207.16(b)). | The petition must either show the relationship of the distributee to the decedent and the name and relationship of each person through whom the distributee claims to be related, or annex a family tree table or diagram showing the name, relationship and date of death of each such person, supported by an affidavit of a person having knowledge of its contents. |
| The petitioner alleges that the decedent was survived by no distributee or only one distributee, or the distributees are grandparents, aunts, uncles, first cousins or first cousins once removed (207.16(c)). | Proof of how each distributee is related to the decedent and that no other persons of the same or a nearer degree of relationship survived the decedent. Unless the court allows otherwise, the proof must be by affidavit or testimony of a disinterested person, and where only one distributee survived, it may not be given by that distributee’s spouse or children. A family tree, table or diagram must be attached as an exhibit unless the distributee is the spouse or only child of the decedent. |
The more distant the relationship, the more the affidavit matters, because the family tree analysis is more complex and the risk of overlooking a closer relative is higher.
Who Qualifies as a Disinterested Person
The affiant must have no financial stake in the outcome of the estate, and must have actual knowledge of the family. Hearsay and general impressions are not enough; the affiant should have had personal dealings with the family members being identified.
| Not disinterested | Usually acceptable |
|---|---|
| Distributees of the estate. | Long-time friends of the decedent who are not family. |
| Beneficiaries under any will. | Non-relative neighbors who knew the decedent for many years. |
| Spouses or children of distributees or beneficiaries. | Members of the decedent’s religious community. |
| Creditors of the estate. | Former co-workers with a long acquaintance. |
| Anyone else whose interest the affidavit’s contents could affect. | Family members by marriage who are not themselves heirs, such as the in-laws of distant relatives. |
Building the Family Tree
The family tree traces the decedent’s ancestry back to the common ancestor whose descendants include all of the claimed distributees. In a first-cousin case, that means going back to the decedent’s grandparents and tracing all of their descendants; for more distant relationships, the tree goes back further.
The tree should identify each person by full name, including maiden names, give dates of birth and death where known, show marriages, divorces and remarriages, list the children of each marriage, including adopted and non-marital children, and indicate who is still living and who has died. For each deceased family member, it should say whether that person left surviving descendants. A visual diagram alongside the written description makes the relationships clearer for the court.
The “No Others” Statement
One of the most important parts of the affidavit is the statement that no other persons of the same or a closer degree of relationship survived the decedent. It exists to make sure no closer relative is being overlooked, so the affiant should be able to explain how he or she knows there are no others. A good explanation might be that the affiant has been close to the family for decades and knows all of its branches, has reviewed family records and photographs, has confirmed the tree with other family members, or has checked obituaries, cemetery records and other public sources. A vague statement that no others “are known to” the affiant is much weaker than a specific description of the investigation that was done.
Supporting Documentation
The affidavit is strongest when it is backed by documents: birth certificates establishing parent-child relationships, marriage certificates, death certificates for intermediate family members, census records showing household compositions, naturalization records for immigrant ancestors, newspaper obituaries listing surviving family, and family bibles or similar historical records. Where the records have substantial gaps, as with immigrant families or families separated by war, professional genealogical research may be needed to assemble them.
How the Court Reviews the Affidavit
The Surrogate’s Court reviews the affidavit critically, particularly where the claimed relationship is distant. It may accept the affidavit and its supporting documents without further proof, appoint a guardian ad litem to investigate, require additional documents or supplementary affidavits, schedule a kinship hearing for live testimony, or direct genealogical research by a professional firm. How much scrutiny it applies depends on the size of the estate, the distance of the relationship and how complete the affidavit appears. A well-prepared affidavit often clears review without any additional steps. For what happens when the court wants more, see our guide to kinship hearings.
Consequences of an Incorrect Affidavit
Because the affidavit is sworn under penalty of perjury, an affidavit that turns out to be wrong has real consequences. The estate’s distribution may be overturned if a closer relative surfaces later. The affiant may face perjury charges for false statements and may be liable for damages caused by reliance on the affidavit. And an administrator who made distributions in reliance on it may be surcharged if those distributions turn out to have gone to the wrong people. For these reasons, the affidavit should be prepared carefully, with a thorough investigation behind every statement in it.
If you need an affidavit of heirship drafted, or are dealing with a petition in which one is required, call the Law Offices of Albert Goodwin at 212-233-1233 or email [email protected].
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
