How to Establish Kinship for Cousin Inheritance in New York City

When a New York resident dies without a will and the closest living relatives are cousins, the Surrogate’s Court will not distribute the estate until kinship has been proved in a kinship proceeding. The cousins have to establish two things: that they are related to the decedent in the way they claim, and that no closer relative exists. In practice that means proving that the decedent left no spouse, no descendants, no living parents, no siblings, nieces or nephews, no aunts or uncles, and no cousins other than those already known. A New York City kinship attorney guides the cousins through the process.

This page explains how a cousin inheritance works, from the first notice to the final check.

How a Kinship Proceeding Unfolds

The public administrator takes charge

When the nearest relatives are cousins, they are not permitted to administer the estate themselves. The court appoints the public administrator of the county to be in charge. The public administrator collects and holds the decedent’s assets, searches for relatives, and notifies the closest ones found. The public administrator then asks the cousins to step forward, prove their relationship to the decedent and tell the court about any other cousins they know of. The court also appoints a guardian, an attorney whose job is to look out for the interests of unknown or missing heirs.

The cousins respond and ask for a kinship proceeding

When you receive a notice that you are a cousin in a New York proceeding, it is best to speak to a kinship attorney and to respond on time, preferably through that attorney. Your attorney must file a request for a kinship proceeding. A cousin who never does so loses the inheritance.

The cousins gather the proof

The cousins, together with a genealogist they hire, gather the official documents that trace the family back to the common ancestors: certified or original birth and death certificates, marriage certificates, census records, probate records and similar documents, often going back several generations. The known cousins must also identify every other cousin and prove to the court that no others exist, which includes proving the death of any cousin who has since passed away. This can be overwhelming in a family that is large, spread out or has lost touch over the years.

The court requires diligent efforts to identify and notify every potential heir. That due diligence involves online searches and public record reviews and, in some cases, publishing notices. If the investigation turns up more cousins, the public administrator notifies them as well, so that every potential heir has a chance to come forward and no rightful heir is overlooked.

The hearing

Once the evidence is assembled, the cousins’ attorneys summarize it in affidavits, exhibits, family trees and testimony and request a hearing with the Surrogate’s Court. Kinship hearings follow the trial rules, in a more relaxed setting than a typical trial. The hearing is usually conducted by a referee who works for the judge. The referee hears testimony from the genealogist, from disinterested witnesses and from the cousins about how each claimant is related to the decedent.

Reports, decree, accounting and distribution

After the hearing the referee reviews all the submitted evidence and issues a report to the judge. The guardian issues a separate report, which usually states that there are no unknown or missing heirs. The judge reviews both reports and typically issues a decree of kinship formally naming the heirs. Sometimes the judge asks for a follow-up, which means going back to an earlier step before the decree can issue.

Once the heirs are decreed, the public administrator presents them with an accounting: a set of schedules of all the assets and expenses of the estate and the proposed distributions. When the cousins have reviewed and approved the accounting, the public administrator mails each cousin a check for his or her share.

The Court Wants Testimony From a Disinterested Person

In kinship cases the court prefers the testimony of a disinterested person who knew the decedent and the family. Disinterested means someone who does not stand to inherit. If a completely disinterested witness cannot be found, a person related to one of the cousins can testify, even a child or spouse of a cousin.

A genealogist hired by the cousins is also considered disinterested, and the court will accept the genealogist’s testimony. But since the genealogist did not know the decedent or the family, that testimony is limited to the documents. In our kinship cases we typically present a witness who does not stand to inherit, a genealogist and one of the cousins, to give the court a complete picture.

The Kinship Decree

After reviewing the referee’s report and the guardian’s report, the judge issues a decree deciding whether the claimants have satisfactorily proven their relationship to the decedent. If they have, the decree names them as the legal heirs entitled to distribution. If the judge is not fully satisfied, the judge can direct further proceedings before signing a final decree.

The Estate Is Split 50/50 Between the Maternal and Paternal Sides

The estate is divided in half between the maternal cousins and the paternal cousins. It does not matter that the decedent was much closer to some cousins than to others; inheritance law looks only at the family lines. Because each side shares 50%, cousins on the more populous side receive less per person than cousins on the other side.

We have helped many cousins inherit under New York law, and we can usually tell early whether a family’s records are likely to satisfy the court. We are located in Midtown Manhattan. Call us at 212-233-1233 or email [email protected].