Sole Heir-at-Law and Distributee in New York

Under New York law, the concepts of a sole heir-at-law and a distributee share some similarities but also have important distinctions. While a sole heir-at-law is always considered a distributee, the distributee is not always a sole heir-at-law. This difference is significant because a sole heir-at-law must fulfill an additional requirement when filing a petition for administration, a stipulation that is typically not necessary when there are multiple surviving distributees.

What is a Distributee?

Under New York law, a distributee, also known as an heir-at-law or next of kin, is an individual who has the right to inherit a portion of a decedent's estate when the decedent passes away without a valid will. The Estates, Powers and Trusts Law (EPTL) 4-1.1 establishes a priority order for determining who qualifies as a distributee. This hierarchical system means that the presence of individuals in a higher priority class precludes those in lower classes from inheriting. As per EPTL 4-1.1, the following persons are considered distributees of a decedent, in descending order of priority:

1. The decedent's spouse and issue (descendants)
2. The decedent's parents
3. The decedent's siblings and their issue
4. The decedent's grandparents and their issue
5. The decedent's great-grandparents and their issue

An issue refers to a person's lineal descendants, including children, grandchildren, great-grandchildren, and so forth. When discussing siblings and their issue, it encompasses the siblings themselves and their direct descendants, such as nieces, nephews, grand-nieces, and grand-nephews. In a scenario where a decedent is survived by grandchildren and nephews (the children of the decedent's siblings), the heirs-at-law would be the decedent's grandchildren, as they have a closer degree of kinship. Consequently, the decedent's nephews would be excluded from inheriting under the laws of intestate succession.

What is a Sole Heir-at-Law?

A sole heir-at-law arises in situations where only one distributee outlives the decedent. To illustrate, consider the previous example where the decedent is survived by a single grandchild and multiple nephews and nieces. In this scenario, the decedent's sole grandchild would be recognized as the sole heir-at-law, taking precedence over the decedent's siblings' descendants.

The Importance of Distributees and Sole Heir-at-Law

Ascertaining the identity of the distributees is crucial, regardless of whether the decedent passed away with or without a will. In the event that the decedent had a valid will, the distributees maintain the right to contest the will, even if they were not named as beneficiaries. Consequently, before the will can be admitted to probate, the distributees are required to either execute a waiver and consent to the probate process or present compelling reasons as to why the will should not be admitted to probate.

A sole heir-at-law takes on significant importance when a decedent passes away without leaving a valid will. In such a situation, before the sole heir-at-law can be appointed as the administrator of the decedent's estate, an additional requirement must be met. As the sole surviving heir, an affidavit of sole heirship must be submitted to the court. This affidavit should be executed by a disinterested individual who is well-acquainted with the decedent and their family, and who can affirm under oath that the person in question is indeed the decedent's sole surviving heir. In the absence of a disinterested person capable of attesting to the decedent's family tree and the status of the sole surviving heir, a professional genealogical affidavit becomes necessary. In this case, a genealogist conducts a thorough search of the records and draws a conclusion regarding the identity of the decedent's sole surviving heir.

What is an Affidavit of Heirship?

An affidavit of heirship is a legal document that identifies the heirs of a person who died without a will (intestate). The purpose of this affidavit is to establish the legal heirs of the decedent and their right to inherit the decedent's property. The affidavit must be signed by a disinterested person, meaning someone who has no stake in the decedent's estate and will not benefit from the distribution of assets. The person signing the affidavit (the affiant) must have personal knowledge of the decedent's family history, including the names and relationships of the decedent's relatives.

In New York, an affidavit of heirship is required when a person dies without a will and there is a sole heir-at-law. It is also necessary in cases where the relationship of the decedent to the distributee is more remote than siblings, such as grandparents, aunts, uncles, or first cousins. The affidavit must be submitted to the Surrogate's Court along with the petition for administration.

An affidavit of heirship may also be used to establish ownership of real property when the decedent died without a will. The affidavit can be recorded with the county clerk's office to transfer title to the heirs. In some cases, the affidavit may also be used to claim the decedent's personal property from third parties, such as banks or insurance companies, without going through the probate process. Although the affidavit itself does not transfer title, it provides a clear record of the deceased’s family history and lineage to confirm the rightful successors of their assets.

The affidavit must include the affiant's full name, address, and relationship to the decedent. The affiant must state that, to the best of their knowledge, there are no other relatives with a closer degree of kinship to the decedent than those listed in the affidavit. The affidavit should include a detailed family tree diagram or table, showing the relationships between the decedent and the heirs (except if the distributee is the spouse or only child of decedent).

Consulting with a New York probate or distributee lawyer like us is crucial due to the complexity of New York Estates, Powers and Trusts Law. Improper advice or a lack of understanding can lead to the potential exclusion of distributees, resulting in legal issues and additional fees to rectify problems arising from the improper identification of distributees. Should you need assistance or legal representation, the Law Offices of Albert Goodwin are here for you. We are located in Midtown Manhattan, New York, NY. Call us at 212-233-1233 or email [email protected] to schedule a consultation.