Family Tree Affidavit in New York City

Under NYCRR 207.16, a family tree affidavit is required in New York petitions for probate when the decedent was survived by no relatives, one relative or where the relationship of the relatives to the decedent is grandparents, aunts, uncles, or first cousins. This family tree affidavit should not be confused with the small estate affidavit required under SCPA 1310.

The family tree affidavit is an affidavit executed by a disinterested person, which should include a family tree unless the distributee is the spouse or only child of the decedent. The family tree affidavit must include how and how long the disinterested person knows the decedent and is familiar with his family, the disinterested person’s relationship to the decedent, who the decedent’s distributees are, and a statement that there are no other persons of the same or nearer degree of relationship who survived decedent. This affidavit is executed under penalty of perjury.

The affidavit is not conclusive evidence of the identities of the heirs. It may be rebutted. An heir omitted in an family tree affidavit may contest or dispute the affidavit by filing a correction affidavit in the same probate proceeding together with evidence to establish his relationship with the decedent (such as a birth certificate).

Section 207.16 states as follows:

(b) Whenever, in a petition for probate or administration, a party upon whom the service of process is required is a distributee whose relationship to decedent is derived through another person who is deceased, the petition must either:

(1) show the relationship of the distributee to decedent and the name and relationship of each person through whom such distributee claims to be related to decedent; or

(2) have annexed a family tree table or diagram showing the name, relationship and date of death of each person through whom such distributee claims to be related to the decedent, which table or diagram shall be supported by an affidavit of a person having knowledge of the contents thereof.

(c) If the petitioner alleges that the decedent was survived by no distributee or only one distributee, or where the relationship of distributees to the decedent is grandparents, aunts, uncles, first cousins or first cousins once removed, proof must be submitted to establish:

(1) how each such distributee is related to the decedent; and

(2) that no other persons of the same or a nearer degree of relationship survived the decedent.

Unless otherwise allowed by the court, the proof submitted pursuant to this subdivision must be by an affidavit or testimony of a disinterested person. Unless otherwise allowed by the court, if only one distributee survived the decedent, proof may not be given by the spouse or children of the distributee. The proof shall include as an exhibit a family tree, table or diagram, except no such table or diagram shall be required if the distributee is the spouse or only child of the decedent.

When drafting a family tree affidavit, it is best to consult with an estate lawyer with expertise on the subject matter to ensure that no mistakes are made. Should you need to draft a family tree affidavit, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

Why the Family Tree Affidavit Matters

The family tree affidavit is one of the most important documents in estates that involve distant relatives. The affidavit serves several purposes:

• Identifying the distributees. When the decedent has no spouse, children, or parents, the heirs are siblings, nieces and nephews, or cousins. The court needs to know who these people are.
• Proving the "no others" requirement. The petitioner must establish not only that the proposed heirs are related to the decedent in the claimed way, but also that no closer relatives exist who would inherit ahead of them.
• Supporting due process. The affidavit ensures that all interested parties are identified and given notice of the proceeding.
• Protecting against later claims. A complete affidavit, made under penalty of perjury, creates a record that supports the eventual distribution decree.

Who Can Sign the Affidavit

The court requires that the family tree affidavit be signed by a "disinterested person." A disinterested person is one who has no financial interest in the estate — not a distributee, not a beneficiary, not a creditor, not someone whose share would change based on what the affidavit says.

The disinterested person must also have personal knowledge of the family. The classic disinterested affiant is a long-time friend or non-relative neighbor who knew the decedent for decades and is familiar with the decedent's family relationships. Other potential affiants include:

• Family members by marriage who are not blood relatives (spouse's family, for example).
• Religious community members who knew the family.
• Former co-workers with long acquaintance.
• Old family friends.

The affidavit identifies the basis of the affiant's knowledge — how long they knew the decedent, the nature of their relationship, and the family events they attended or witnessed.

Required Contents of the Affidavit

A complete family tree affidavit typically includes:

• The affiant's name, address, and biographical information.
• The affiant's relationship to the decedent (friend, neighbor, etc.) and the duration of the relationship.
• A statement that the affiant has no financial interest in the estate.
• A description of the affiant's familiarity with the decedent's family.
• An identification of the decedent's parents, grandparents, and other relevant ancestors.
• A listing of the decedent's siblings and their dates of birth and (if applicable) death.
• For each deceased sibling, a listing of their children (nieces and nephews of the decedent).
• A statement that no other persons of the same or closer degree of relationship survived the decedent.
• A family tree diagram showing the relationships visually.
• The affiant's notarized signature.

For more distant relationships (cousins, second cousins), the affidavit must trace the family tree back to the common ancestor and document each link in the chain.

Supporting Documentation

Whenever possible, the affidavit should be supported by documentary evidence:

• Birth certificates establishing parent-child relationships.
• Marriage certificates establishing spousal relationships.
• Death certificates documenting the death of intermediate ancestors.
• Census records showing household composition.
• Obituaries listing surviving family members.
• Newspaper announcements of births, marriages, and deaths.
• Family bibles or photo albums documenting the family.

The supporting documentation makes the affidavit more reliable and reduces the chance of objections during the kinship review.

The Court's Review

The Surrogate's Court reviews the family tree affidavit critically, particularly in cases where:

• The proposed distributees are distant relatives (cousins, second cousins).
• The estate is substantial.
• The family includes immigrants from countries with disrupted historical records.
• The family has been geographically dispersed for generations.
• There have been remarriages and step-relationships that could affect the analysis.

The court may appoint a guardian ad litem to review the genealogical record and report back. The GAL scrutinizes the affidavit, may demand additional supporting documentation, and ultimately recommends to the court whether the affidavit is sufficient.

What Happens If the Affidavit Is Insufficient

If the affidavit is insufficient, the proceeding may shift to a formal kinship hearing. The hearing involves:

• Live testimony from the affiant and other witnesses.
• Cross-examination by the GAL and other interested parties.
• Detailed documentary evidence including all available records.
• Potentially genealogical research by a heir search firm.
• DNA evidence in appropriate cases.

Kinship hearings can be time-consuming and expensive but produce the strongest possible record for the eventual decree.

Practical Tips

For petitioners preparing family tree affidavits:

• Start gathering documentation early. Birth and death certificates from other states or countries can take weeks or months to obtain.
• Interview elderly family members while they are still available. Their memories often fill gaps that documents cannot.
• Use professional genealogists for difficult cases. The cost is often worth the certainty.
• Be thorough about identifying potential heirs. Missing a distant cousin can invalidate the proceeding later.
• Work with the attorney to ensure the affidavit meets the court's specific requirements.