Kinship Proceedings in New York City Surrogate's Court: How Heirship Is Proven and Litigated

By Albert Goodwin, Esq., Law Offices of Albert Goodwin, New York estate litigation attorney. This page covers kinship practice in the Surrogate's Courts of New York, Kings, Queens, Bronx and Richmond Counties. The governing statutes apply statewide.

A kinship proceeding is the part of a New York estate case in which the Surrogate's Court decides who the decedent's distributees are. A distributee is a person entitled to take under the intestacy statute, EPTL § 4-1.1. Kinship becomes contested when a person dies without a will and without a spouse, children or parents, or when a will leaves property to a class such as "my nieces and nephews" without naming them. The people who most often need this page are relatives who have been told they must "prove kinship" before an estate or a deposited fund will be released, and administrators or Public Administrator claimants who need the court to fix the list of heirs before distribution.

This page explains the burden of proof, the three statutory provisions that control most contested kinship matters (SCPA § 2225, SCPA § 2222 and 22 NYCRR § 207.16), the evidence the court expects, the role of the guardian ad litem and the Public Administrator, how hearings are run in the five New York City Surrogate's Courts, a worked proof chain for a first-cousin claimant, and what the process typically costs and how long it takes. For the mechanics of obtaining letters, see our pages on estate administration in New York and letters of administration. For the form of the sworn family-tree statement itself, see the New York affidavit of heirship.

New York City or New York State? Which Rules Apply

The intestacy statute (EPTL Article 4), the Surrogate's Court Procedure Act and the Uniform Rules for the Surrogate's Court (22 NYCRR Part 207) apply in every county of the state. What differs in New York City is practice. Each of the five counties has its own Surrogate's Court and its own Public Administrator operating under SCPA Article 11. Kinship hearings in the City are usually referred to a court attorney-referee. Dockets in New York, Kings and Queens Counties are large, and scheduling reflects that. The legal standard is the same in Buffalo as in the Bronx; the calendar, the personnel and the local expectations about proof are not.

Where Kinship Gets Decided

Kinship can arise in four different procedural settings. Knowing which one you are in determines who the parties are and who pays.

• An administration petition under SCPA Article 10: A relative petitions for letters and must satisfy the court that the people listed in the petition are the only distributees. If the relationship is remote, the court will not issue letters, or will issue them only to the Public Administrator, until kinship is established.
• The Public Administrator's accounting: In New York City, when no relative steps forward, the county Public Administrator takes letters, collects the assets and eventually files an account. Claimants who say they are distributees appear in that accounting proceeding and prove kinship there. This is the most common setting for a full kinship hearing in the five boroughs.
• A probate or construction proceeding: A will leaves property to "my children" or "my cousins" and someone disputes who falls in the class. The question is one of status and is tried in the same way.
• A withdrawal application under SCPA § 2223: Money was already deposited with the Commissioner of Finance under SCPA § 2222 for unknown heirs. A person who later claims that money must prove kinship before it is released.

Call the Law Offices of Albert Goodwin at 212-233-1233 if you have received notice of any of these proceedings and need to decide how to respond.

The Order of Intestate Succession Under EPTL § 4-1.1

The kinship proceeding sorts claimants into the categories the statute creates. In summary form:

1. Spouse and no issue: the spouse takes everything.
2. Spouse and issue: the spouse takes $50,000 plus one-half of the balance; the issue take the rest by representation.
3. Issue and no spouse: the issue take everything by representation.
4. No spouse or issue: the parent or parents take.
5. No spouse, issue or parent: the issue of the parents take by representation, meaning siblings and the children of deceased siblings.
6. None of the above: one-half to the paternal grandparents or their issue and one-half to the maternal grandparents or their issue, by representation. Under EPTL § 4-1.1(a)(6), issue of grandparents stops at grandchildren of grandparents, meaning first cousins. If one side has no survivors, the other side takes the whole.
7. No grandparents, aunts, uncles or first cousins: under EPTL § 4-1.1(a)(7), great-grandchildren of grandparents (first cousins once removed) take per capita, again divided between the paternal and maternal sides.
8. No one in any of these classes: the property passes to the State of New York.

Three related rules come up repeatedly. Half-blood relatives are treated the same as whole-blood relatives (EPTL § 4-1.1(b)). An adopted child is a distributee of the adoptive family, and generally not of the birth family, under Domestic Relations Law § 117. A nonmarital child inherits from the father only if paternity is established under EPTL § 4-1.2, which permits proof by an order of filiation, an acknowledgment of paternity, clear and convincing evidence that the father openly and notoriously acknowledged the child, or a genetic marker test combined with other evidence.

The Claimant's Burden: Relationship and "No Others"

The person claiming to be a distributee carries the burden of proof. The standard is a preponderance of the evidence. The claimant must prove two things:

1. The relationship: every link in the chain from the claimant up to a common ancestor and back down to the decedent, with proof that each intermediate person existed, was the child of the person above them, and (where relevant) died before the decedent.
2. No others: that no one of a closer degree survived the decedent, and that no one else of the same degree exists who has not been accounted for.

Courts routinely cite Matter of Whelan, 93 A.D.2d 891 (2d Dep't 1983), aff'd 62 N.Y.2d 657 (1984), for the rule that a claimant must establish both elements, and for the proposition that the "no others" element may be proven through a combination of documents and testimony rather than by proving a negative with certainty. In practice the court looks at whether the family history offered is coherent, whether the documentary record matches it, and whether anyone who would be expected to know of other relatives has said there are none.

The further down the EPTL § 4-1.1 list the claimant sits, the longer the list of people who must be ruled out. A sibling must rule out a spouse, children and parents. A first cousin must rule out all of those plus siblings, nieces and nephews, grandparents, aunts and uncles, and must account for every other first cousin on both sides of the family.

22 NYCRR § 207.16 and the Kinship Affidavit

Uniform Rule 207.16 governs proof of distributees in administration proceedings. Where the petition alleges that the decedent left no distributees, only one distributee, or distributees who are grandparents, aunts, uncles, first cousins or first cousins once removed, the rule requires proof of how each distributee is related to the decedent and that no other persons of the same or a closer degree survived. The court will not accept the petitioner's own say-so. The usual vehicle is a sworn family-tree affidavit from a disinterested person with personal knowledge of the family, accompanied by a diagram and supporting certificates.

This page does not repeat the contents of that affidavit. For what the affidavit must contain and who may sign it, read when an affidavit of heirship is required. The point for present purposes is that the 207.16 affidavit is the starting document in an uncontested matter and becomes an exhibit, not a substitute for testimony, once kinship is contested.

SCPA § 2225: Presuming Death and "No Others" After a Diligent Search

Without SCPA § 2225 many kinship cases could never be closed. The statute gives the court two tools, each available only after not less than three years have passed since the decedent's death and only after diligent and exhaustive efforts to locate the missing person or persons:

• Under § 2225(a): where a particular distributee is known to have existed but cannot be found, the court may determine that the person predeceased the decedent and left no issue.
• Under § 2225(b): where the question is whether any distributees exist beyond those already proven, the court may determine that no other distributees exist.

What counts as a diligent and exhaustive search is decided case by case. The court expects more than an internet search. Typical steps include searches of vital records in every state and country where the family lived, census and immigration records, Social Security death records, obituary and cemetery searches, letters to last known addresses, inquiries with relatives and former neighbors, and, where the trail leads abroad, a search by a genealogist working in the relevant country. The guardian ad litem will test the search, and the court will often rely on the guardian's report in making the § 2225 finding.

The three-year clock matters for timing. A claimant who files in the first year after death can prove his or her own relationship but cannot obtain a § 2225 determination until the third anniversary of the death. Public Administrator accountings in the City are frequently scheduled with that date in mind.

SCPA § 2222: Deposit With the Commissioner of Finance for Unknown Heirs

When the court cannot yet find that no other distributees exist, or when a known distributee cannot be located, the share in question does not escheat and is not simply held by the administrator. Under SCPA § 2222 the court directs that the share be paid into court. In the five counties of New York City the depository is the Commissioner of Finance of the City of New York; outside the City it is the county treasurer. The administrator or Public Administrator is then discharged as to that share.

A person who later proves entitlement may apply to withdraw the fund under SCPA § 2223. That application is itself a kinship proceeding. The applicant must prove the relationship and, depending on the terms of the original decree, may again have to address the "no others" question. Funds that go unclaimed for the statutory period are eventually transferred to the State Comptroller under the Abandoned Property Law, where a claim remains possible but is handled through a different office and process.

What Evidence the Court Expects

Kinship is proven mostly on paper. The court expects certified copies, not photocopies, and expects the documents to fit together without unexplained gaps in names, dates or places.

• Vital records: birth, marriage and death certificates for the decedent, the claimant and every intermediate relative. A death certificate for each person who must be shown to have predeceased the decedent is the single most frequently missing item.
• Census records: federal census returns from 1850 through 1950, and New York State census returns (1892, 1905, 1915, 1925), show household composition and are often the only document placing a child in a parent's home.
• Immigration and naturalization records: ship manifests, declarations of intention, naturalization petitions and alien registration files frequently list spouses, children, birthplaces and relatives abroad.
• Religious records: baptismal, confirmation, marriage and burial registers, which in many countries predate civil registration.
• Cemetery and funeral records: burial permits, plot ownership records and funeral home files, which name the person who arranged the burial and often list next of kin.
• Obituaries and death notices: admissible as part of the family-history picture and useful for showing who was, and was not, listed as surviving.
• Family papers: letters, photographs, bibles and address books. These rarely prove a link on their own but corroborate testimony.

Foreign documents must be authenticated. Records from countries that are party to the Hague Apostille Convention require an apostille; others require consular legalization or compliance with CPLR 4542. Any document not in English must be accompanied by a translation and a translator's affidavit under CPLR 2101(b). Testimony about family relationships from deceased relatives is admissible under the common-law pedigree exception to the hearsay rule, provided the declarant was a family member and the statement was made before the dispute arose.

DNA Evidence

DNA testing is admissible in the Surrogate's Court and is most useful in two situations. The first is a claimed parent-child relationship, where EPTL § 4-1.2(a)(2)(D) expressly contemplates a genetic marker test together with other evidence to establish paternity of a nonmarital child. The second is a claimed collateral relationship, such as cousins, where testing between living relatives can confirm or exclude a shared ancestor. DNA does not by itself satisfy the "no others" element, and it does not tell the court which side of the family a shared ancestor sits on with the precision the statute requires. It supplements the documentary chain; it does not replace it. Post-mortem testing of the decedent is possible only where a sample was preserved, and an order permitting exhumation is granted sparingly.

The Guardian ad Litem for Unknown Distributees

In almost every contested kinship matter the court appoints a guardian ad litem under SCPA § 403 to represent persons under disability, a category that includes distributees who are unknown or whose whereabouts are unknown. The guardian reviews the claimant's proof, identifies gaps, may conduct independent research, attends the hearing, cross-examines witnesses and files a written report recommending whether the court should find kinship established and whether a § 2225 determination is warranted.

The guardian's fee is fixed by the court under SCPA § 405 and is paid from the estate. In a straightforward matter with one or two claimants and a clean record the fee may be a few thousand dollars. In a multi-branch cousin case with foreign records, several hearing days and a lengthy report the fee can run considerably higher. The guardian's report carries weight with the court, and a favorable report is often the practical difference between a decree on submission and a contested trial.

The Public Administrator in Each Borough

SCPA Article 11 establishes a Public Administrator in each county within the City of New York: New York County (Manhattan), Kings County (Brooklyn), Queens County, Bronx County and Richmond County (Staten Island). When a person dies in the borough without a known relative eligible for letters, or when the known relatives are too remote to qualify without proof, the Public Administrator takes letters under SCPA § 1001, secures the apartment or house, collects the assets, pays debts and files an accounting.

In a kinship case the Public Administrator and its counsel are neutral as between claimants but are not passive. Counsel to the Public Administrator will usually have commissioned its own heir search and will take a position on whether the claimants' proof is sufficient. Claimants appear in the accounting proceeding, file objections or a notice of appearance asserting kinship, and the court schedules a kinship hearing within that proceeding. If no claimant proves kinship by the time the account is settled, the net estate is deposited under SCPA § 2222 as described above. Access to the decedent's residence before letters issue is a separate problem covered on our page on getting access to an apartment after a death.

How the Kinship Hearing Is Run in New York City Surrogate's Courts

In all five counties contested kinship is ordinarily referred under SCPA § 506 to a court attorney-referee to hear and report. The referee takes testimony, rules on the admission of exhibits and prepares a report with findings. The Surrogate then confirms, modifies or rejects the report and signs the decree. A few matters are heard directly by the Surrogate, usually where a legal question of first impression is involved.

The sequence in a typical matter is:

1. Pre-hearing conference: the referee identifies the claimants, confirms the appointment of the guardian ad litem, and sets a schedule for exchange of documents and the family tree.
2. Exchange of proof: each claimant serves a proposed family tree and copies of every certificate and record relied on. The guardian and the Public Administrator's counsel respond with objections or requests for additional documents.
3. Hearing: the claimant and any corroborating witnesses testify. Documents are marked and admitted. The guardian cross-examines. Hearings range from a single morning to several non-consecutive days spread over months.
4. Post-hearing submissions: written findings of fact and memoranda of law, followed by the guardian's report.
5. Referee's report and decree: the Surrogate confirms the report and signs a decree fixing the distributees and their shares, including any § 2225 determinations and any § 2222 deposit.

Where the proof is complete and the guardian is satisfied, the court may dispense with live testimony and decide kinship on the papers. That is the goal in most cases and the reason the documentary work is done before, not during, the hearing.

A Worked Example: Proving a First-Cousin Claim

The following is an illustration, not a description of any actual client matter. Assume a decedent, Maria, dies in Queens at age 88, never married, no children, both parents long dead, an only child. Her estate is being administered by the Queens County Public Administrator. A man named Peter claims to be her first cousin through her mother's side. To take as a distributee under EPTL § 4-1.1(a)(6), Peter must prove the following, link by link:

1. Maria left no spouse: Maria's death certificate marked "never married," testimony from Peter and a long-time neighbor, and a search of marriage indices in New York State and the City Clerk's records returning no result.
2. Maria left no issue: testimony from the same witnesses, her obituary listing no children, and the absence of any child in the household on the available census returns. Courts have accepted an inference of no issue where a decedent lived to an advanced age, never married, and relatives with reason to know testify that no child was ever mentioned.
3. Maria's parents predeceased her: death certificates for both parents.
4. Maria had no siblings or issue of siblings: census returns showing Maria as the only child in the household at each enumeration, the parents' obituaries, testimony, and a search for any birth record to the parents other than Maria's.
5. Maria's grandparents predeceased her: death certificates or, for grandparents who died abroad before civil registration, church burial records with certified translations.
6. The maternal link: Maria's birth certificate naming her mother; the mother's birth certificate naming the maternal grandparents; Peter's birth certificate naming his mother; Peter's mother's birth certificate naming the same maternal grandparents. This establishes that Maria's mother and Peter's mother were sisters and that Peter is Maria's first cousin.
7. Aunts and uncles on the maternal side predeceased Maria: death certificates for every child of the maternal grandparents, including Peter's mother. Living aunts or uncles would take ahead of cousins.
8. All other maternal first cousins are accounted for: for each maternal aunt and uncle, either a death certificate plus proof of no issue, or birth certificates for every child, with death certificates for any who died, and a current address for each who is living. Every living maternal first cousin shares Peter's half.
9. The paternal side: the same work must be done for Maria's father's family. If Peter proves that no paternal grandparent, aunt, uncle or first cousin survived Maria, the maternal cousins take the whole estate under the proviso in § 4-1.1(a)(6). If Peter cannot prove that, the paternal half is deposited under SCPA § 2222 pending a § 2225 determination at the three-year mark.

Each numbered item is a potential objection from the guardian ad litem. The most common failures are items 4, 8 and 9: a family that "always knew" there were no other siblings or cousins but has no document that says so, and a paternal side that no one has researched because the family lost contact generations ago.

Costs and Timelines

No two kinship matters cost or take the same. The following are general observations about New York City practice, not quotes.

• Time: an uncontested kinship submission with complete documents in an administration petition may be decided within several months of filing. A contested hearing in a Public Administrator accounting commonly takes one to three years from the first appearance to decree, driven by the three-year waiting period in SCPA § 2225, the time needed to obtain foreign records, and court scheduling in the busier counties.
• Record retrieval: certified New York City vital records carry per-copy fees set by the Department of Health and the Department of Records. Foreign records, apostilles and certified translations add cost per document, and a chain with twenty or thirty documents is not unusual.
• Genealogists and heir-search firms: some firms work for a flat or hourly fee paid by the estate or the claimant. Others locate heirs who did not know of the estate and contract for a percentage of the heir's share, often in the range of one-quarter to one-third. The Surrogate has authority to review such agreements, and claimants should read them carefully before signing.
• Guardian ad litem: fixed by the court under SCPA § 405 and paid from the estate, with the range described above.
• Attorney's fees: depend on whether the matter is decided on papers or tried. Fees paid from the estate are subject to court approval; fees paid by a claimant directly are a matter of the retainer agreement.

How This Page Relates to Our Other Heirship Pages

Readers sometimes arrive here looking for a different page. If you need to understand the sworn statement that accompanies an uncontested petition, see the affidavit of heirship. If you are a relative who wants to be appointed and the question is eligibility and priority rather than proof of relationship, see becoming administrator of an estate without a will and obtaining letters of administration. If the Public Administrator has already filed an account and you need to object or respond, see estate accounting proceedings. This page is for the contested question of who the heirs are and how that question is tried.

Frequently Asked Questions About New York Kinship Proceedings

How long does a kinship proceeding take in New York?

Uncontested matters with complete documents can be resolved in months. Contested matters in New York City, especially those involving the Public Administrator and relatives abroad, commonly take one to three years. The three-year period in SCPA § 2225 sets a floor for any case in which a missing relative must be presumed dead or the court must find that no other distributees exist.

Who pays the genealogist?

It depends on who hired the genealogist and on what terms. A genealogist retained by the administrator or Public Administrator is an estate expense, subject to court approval. A genealogist retained by a claimant is paid by the claimant, either hourly or as a percentage of the recovery. Heir-search firms that locate an heir who was unaware of the estate usually contract for a percentage of that heir's share.

What if a cousin lives in another country?

A foreign relative is a distributee on the same terms as a domestic one. The practical issues are proof and service. Foreign vital records must be obtained from the country's civil registry or religious archive, authenticated by apostille or consular legalization, and translated. Testimony can sometimes be taken by commission or, with the court's permission, by remote means. Distribution to a relative in a country with currency or sanctions restrictions can raise additional issues at the decree stage.

Can DNA alone prove kinship?

No. DNA can prove that two people share an ancestor and can be decisive on paternity under EPTL § 4-1.2. It cannot by itself establish the degree of relationship with the precision the intestacy statute requires, and it says nothing about whether closer relatives exist. The court still requires the documentary chain and proof of "no others."

What happens if no one proves kinship?

The net estate is deposited with the Commissioner of Finance under SCPA § 2222. A person who later establishes entitlement may apply to withdraw it under SCPA § 2223. Funds that remain unclaimed are eventually transferred to the State Comptroller as abandoned property.

Can a kinship decree be challenged later?

A decree fixing distributees binds the parties and the persons represented by the guardian ad litem. An administrator who distributes under the decree is protected. A later-discovered relative who was not a party and was represented only through the guardian may in limited circumstances seek to reopen the decree, but the bar is high, which is one reason the court insists on a thorough search before it signs.

Do I need a lawyer if the Public Administrator already has one?

Counsel to the Public Administrator represents the Public Administrator, not you. The guardian ad litem represents unknown heirs, not you. If you claim a share, the burden of proving it is yours alone.

Talk to a New York City Kinship Attorney

Kinship proceedings combine genealogy, evidence law and Surrogate's Court procedure. If you have been named as a possible heir, if you need to prove your relationship to a decedent in any of the five boroughs, or if you are an administrator who must fix the list of distributees before you can distribute, we can help. We work with genealogists, heir-search firms and DNA laboratories to assemble the proof the court requires, and we appear before the referees and Surrogates of New York, Kings, Queens, Bronx and Richmond Counties. Call the Law Offices of Albert Goodwin at 212-233-1233 to discuss your matter.

Reviewed by Albert Goodwin, Esq. This page is general information about New York law and is not legal advice for any particular situation.