You are trying to establish proof of kinship in New York, because the court is not releasing your inheritance unless you do so. Likely, the person who died did not make a will, and you are their niece, nephew or cousin. The money is held by the Public Administrator, the Court or the Department of Finance. The government will not release the funds unless you prove that you are related to the person who died and that no other relatives have a better claim than you.

Kinds of Documentation Required

To prove kinship, you will need to put together your family tree. You will need to obtain written affidavits and oral testimony of friends and family. You may require the help of professionals such as genealogy experts and estate attorneys.

You will have to show the court how you are related to the decedent. A testimony letter should include information regarding surviving heirs as well as predeceased heirs of the decedent. You may have to provide information about

• maternal and paternal grandparents
• parents
• siblings
• children
• grandchildren
• nieces and nephews
• aunts and uncles

You would have to include their dates of birth and dates of death and other relevant information.  The testimony letter should be signed and acknowledged before a notary public.

Some of the documents you will have to submit are

• birth certificates
• death certificates
• marriage records
• census records
• obituaries
• internet database entries
• other documents that prove your relationship

In kinship cases, there are usually no close family members such as a surviving spouse, children, grandchildren, parents or siblings of the decedent. You are likely a niece, nephew, cousin, or a distant cousin. It would be a complicated project for you to prove kinship and exclude other possible classes of relatives.

What Happens at the Kinship Hearing

Prior to the kinship hearing, your attorney can put together all of the evidence proving your relationship to the decedent. You may also have a report of a private investigator and a genealogist to help you with your proof. You may have DNA test results.

At the hearing, your attorney will argue that you are related to the decedent. There may be counter-arguments from other interested parties. The court will review the documentation, listen to the testimony and determine whether you have the right to the decedent’s assets. If the court is satisfied with your argument, the court will issue an order directing the Public Administrator or the Department of Finance to disburse your share of the estate to you.

Why Do I Need to Prove of Kinship?

Because your relative died without a will and is only survived by distant relatives, New York law mandates that the Public Administrator is assigned and a guardian ad litem is appointed to represent the interest of unknown heirs. New York law also requires that distant relatives establish proof of kinship.

Article 4 of the New York’s Estates, Powers and Trusts Law governs intestate rules.^[1] NY default distribution rules prioritize the potential beneficiaries by consanguinity.

• If the decedent had a spouse and children, then the spouse receives $50,000 plus half of the remainder, shared with deceased children
• If the decedent was survived by a spouse, the spouse gets the entire estate
• If the decedent was survived by children, the children get the entire estate
• 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 of an estate is dependent on lineage, it is possible that the relationship can get even more tenuous than a first cousin. In New York, half-blood relatives get the same share as whole blood. 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.^[2]

New York courts are suspicious of tenuous relationship claims and make all distant relatives submit rigorous proof of being related to the decedent.

The courts take their time before allowing for the distribution of any assets. The state cannot release the estate prematurely, lest a closer-kin exists.

There could be cousins from various sides claiming parts of the inheritance, for example, from the mother’s side, and the father’s side. From the mother’s mother’s side and the mother’s father’s side, etc.

The State of New York conducts kinship proceedings to distribute estates of people dying without close relatives fairly. The state will appoint guardian ad litem to represent undetermined and hard to find relatives who may benefit from the estate.^[3] The guardian is responsible to diligently locate any relatives who may be entitled to the inheritance.

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 have passed since anyone heard from that person and a diligent search has been made, the presumption is that they are dead.^[4]
• Three years is also adequate if no one hears from them since the decedent’s passing.^[5]
• Another presumption is if a relative would be 100 years old, then they are presumed deceased.^[6]

As a distant relative, you will have the burden of establishing proof of kinship and proving lineage to the court in a kinship proceeding.^[7]

This proof requires considerable evidence gathering and could include:

• witnesses
• family heirlooms
• pictures
• DNA results
• cencus records
• internet database entries
• and other proof

Kinship for Paternal and Maternal Relatives

The case of in re Judicial Settlement of Accounts of Mosey sets a nice example.^[8] In Mosey, a person died intestate, with no close family, holding a net estate of approximately $265,000.^[9] At the kinship proceedings, nine paternal cousins and two maternal cousins claimed a 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 the judge awarded them half of the estate.^[10] On the parental side, the judge found that a 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.^[11] 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.^[12]

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 -you should make a will. Additionally, if you are a relative of the deceased who died intestate, do not go into this alone, hire a lawyer.

If you want to know how to establish proof of kinship in New York, a competent New York attorney can help you lay the proper foundation as a beneficiary in a kinship proceeding.

New York kinship laws are complicated, and experience in the Surrogate’s Court practice is paramount when dealing with those issues. Contact attorney Albert Goodwin, Esq., who has more than a decade of experience in kinship and cousin cases. You can reach him at (212) 233-1233. 

[1] N.Y. Est. Powers & Trusts Law § 4-1.1

[2] Id.

[3] N.Y. Surr. Ct. Proc. Act Law § 403 (McKinney 2018).

[4] Id.§ 2225(a).

[5] Id.§ 2225(b).

[6] In re Judicial Settlement of Accounts of Mosey, 880 N.Y.S.2d 225 (Sur. 2008).

[7] SeeMatter of Whelan, 461 N.Y.S.2d 398, 399 (1983), aff’d, 62 N.Y.2d 657 (1984).

[8] In re Mosey, 880 N.Y.S.2d 225.

[9] Id.

[10] Id.

[11] Id.

[12] N.Y. Aband. Prop. Law § 200 (McKinney 2018).

If your cousin, aunt or uncle died in New York, you may be entitled to inherit from their estate.

If they left a will –> then the will determines who gets the inheritance. If you are cut out, there may be ways to set aside the will.

If they died without a will –> then you will have to prove to the court that you are related to them, in what is called a Kinship Proceeding.

The Kinship Proceeding

The Surrogate’s court uses a kinship proceeding to determine heirs of a person who died without a wife, children, siblings or parents.

Your attorney will gather evidence to prove that you are the niece, nephew or cousin of the person who died, and will put together a family tree affidavit supported by evidence of your relationship. The kinship proceeding and will culminate in a hearing where the court referee determines the relatives who will receive the inheritance. After the hearing, the judge will sign off on the report and the person who manages the estate will be able to distribute to you your rightful inheritance from your aunt, uncle or cousin.

The People Involved in the Kinship Proceeding

Court Attorney-Referee – a kinship proceeding is usually not decided by a judge directly, but on a recommendation from a court attorney-referee.^[1] You will see the judge in the beginning of the case when the court attorney is assigned, and you will see the judge’s signature at the end of the case when the court attorney’s report is confirmed, but throughout the case, you will be interfacing with the court attorney, who will conduct all of the pretrial conferences ^[2]  and will be the person who will conduct the kinship hearings.

Attorney for Public Administrator – the public administrator manages estates of people who did not make a will and whose relatives cannot be found.^[3] The public administrator is a public official, but they do not appear in person at each hearing. Rather, they send a private law firm to appear on their behalf. By the time a kinship hearing happens, the public administrator has probably already been appointed to manage the estate, and is probably in the later stages of finding and collecting the property of the person who died for distribution to the heirs.

If your aunt or uncle died without a will, you can ask the court to appoint you to manage their estate. If your cousin died, then you will not be able to manage their estate. Instead, the court will appoint the public administrator to be the administrator of the estate.^[4]

Guardian ad Litem – a lawyer appointed by the court for a particular court proceeding to represent people who cannot represent themselves is called a guardian ad litem. In a kinship hearing, the court will appoint a guardian ad litem to represent heirs who are not known to the court. ^[5] When your New York estate attorney is working on a family tree to prove how you are related to the person who died, the guardian ad litem will be working to find his “clients” – people who are unknown. You and your attorney can help the guardian ad litem find the unknown heirs, or can convince the guardian ad litem and the court that no unknown heirs exist.

Unknown Heirs – unknown heirs do not appear in the proceeding while they are unknown. They are searched for by the guardian ad litem, and are also sometimes found by you or your attorney, in which event you have a duty to disclose this information to the guardian ad litem. If any heirs are found, they can appear in the proceeding and become known heirs. If there is a suspicion that there are heirs but they cannot be located, then the public administrator will be required to deposit their share of the estate with the comptroller of the county for safekeeping, ^[6] which the heirs can claim when they are found or when they find their share through an unclaimed property search (or the money may end up staying with the comptroller forever).

Known Heirs – your relative may have more nieces, nephews or cousins. If that’s the case, then you will have to share the inheritance with the other heirs in your “class,” meaning the other heirs with the same degree of relationship to the person who died.

Genealogist – A genealogist is not required, but can be a big asset to your cases, especially when substantial funds are involved. A good genealogist will help your attorney create a family tree and find all of the available records to prove the relationships. They will testify for you at the kinship hearing.

The Family Tree

To prove your relationship to the court, your attorney will make a family tree diagram. It is a chart of the relatives of the person who died, beginning with your closest common ancestor and including all the people who stand to inherit. It looks like a tree because relatives branch out from the common ancestor.

Closest common ancestor – if the person who died is your uncle or first cousin, the family tree will start with your grandfather or great-grandmother, depending whose side the uncle or cousin is from. If the person who died is your great uncle or second cousin, the family tree will start with your great-grandfather or great-grandmother.

The family tree must include information such as the relatives names, relationships to the decedent, dates of birth, and dates of death. Non-marital children are included. The family tree affidavit must be signed by a non-inheriting person familiar with the relationships. Sometimes that’s the attorney, sometimes the genealogist. Each entry in the family tree should have a supporting record. Each record should be numbered and referred to as “exhibit”. Birth certificates, death certificates, court records and social security records are the best, as they are direct evidence. For lack of direct evidence, circumstantial evidence such as census records, immigration records, work records, personal family records can also be accepted under the right circumstances.

Non-marital children can be found through birth and death records. In cases where paternity is not documented or is disputed, the court will require an evidentiary hearing as to the paternity of the non-marital children involved in the family tree. The person interested in the non-marital children being in the family tree will have to show that the children have been “openly and notoriously acknowledged” by their alleged father. In a few cases, a post-mortem DNA test may be ordered by the court.

Presumption of death of some relatives – If a person has not been heard of three years from the death of the person whose estate this is, that person is presumed to have died before the person whose estate this is.^[7]

First Cousins Once Removed. Children of first cousins are known as first cousins once removed, since they are a generation younger since the first cousins. They are the grand-grandchildren of the decedent’s grandparents. SCPA 4-1.1 First cousins once removed inherit only in limited circumstances – where the decedent does not have regular first cousins on either side (mother’s side or father’s side). Matter of Shumavon, 260 A.D.2d 140.

The Kinship Hearing

The kinship hearing is like a trial because many of the rules of evidence apply, but it is called a hearing because it’s not completely a trial and takes place before a court attorney-referee, not the judge. A kinship hearing can be over in a day, or it may be broken up into several hearings that take place over a stretch of a few months, with adjournments given as the court determines that more evidence is needed.

At the kinship hearing, your estate attorney will present evidence that you are an heir. The evidence presented must comply with New York rules of evidence, including laying the foundation, certification, hearsay rules, and the dead man’s statute.

Dead man’s statute – you will not be able to testify as to the content of your conversation with the person who died. This is because of an evidence rule called “the dead man’s statute.” ^[8] But you will be allowed to testify about your own family relations.

If you have filed objections to an accounting that omits you, then you have a year form the objections to have the kinship hearing, and your proceeding may be dismissed if you miss that deadline.

Upon the end of the hearing, the guardian ad litem (if appointed) will make a report and recommendation to the court attorney, after which the court attorney will make a report and recommendation to the judge. The court attorney-referee is required to submit that report within 30 days of the final hearing in the kinship proceeding. The court attorney’s report and recommendation essentially becomes the judge’s decision. The administrator of the estate then has to distribute the inheritance in accordance with the decision.

Call the Law Offices of Albert Goodwin at (212) 233-1233, New York estate, guardianship, wills, trust, Medicaid and probate lawyer, and make an appointment to discuss your kinship proceeding or any other aspect of inheriting from a cousin or an uncle.

1. SCPA § 506
2. SCPA § 510
3. SCPA § 1112
4. SCPA § 1001
5. SCPA § 315
6. SCPA § 2222
7. SCPA § 2225
8. CPLR § 4519

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 to Prove Kinship

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.

If you are involved in a kinship proceeding or need help with another New York probate matter, you should consult with a New York probate and estate attorney. The attorney can represent the estate, executor, administrator, beneficiaries, heirs and other interested parties regarding New York probate and intestate matters and tax matters.

If you wish to speak to a New York City estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.