Kinship Proceedings | Determining Who is Family.
When a person dies without a will, their family, or kin, inherit. Specifically who will inherit and how much, depends upon:
- The family tree and
- Rules set out by New York Law *(discussed below)
If there is a question or dispute as to who exactly is in the decedent’s family (i.e. who their kin is) the Court will require a Kinship Proceeding before allowing distribution of the estate.
In a Kinship Proceeding, those claiming to be family must show evidence to the Court establishing:
- That they are related and
- What the rest of the family tree looks like
It is this second element that poses the most challenge and confusion. If you have proven that you are related, why should you have to do more? To understand it better, let’s look at an example.
Under NY law, if Joe does not have a will, and dies without leaving a spouse, his estate will be divided among his children. Joe’s daughter Sally may be able to easily establish her relationship by presenting a birth certificate. However, her inheritance cannot be determined because the total number of children has not been established. If Joe had two children, Sally receives ½. If he had ten, Sally receives 1/10th. It all depends upon the rest of the family tree.
In order to establish the rest of the family tree, oral testimony is required. Documents alone cannot conclusively demonstrate that there are no other brothers and sisters. Documents alone cannot “close out the class”. Family members and friends may have to testify, usually in Court, regarding their knowledge of the family members.
The attorneys at Fanning and Hughes, PLLC, have represented numerous heirs and beneficiaries in kinship proceedings in New York’s Surrogates’ Courts. If necessary, our lawyers will work with genealogists to gather evidence to prove your case for kinship. In our trust and estate litigation practice, we have substantial experience in a wide range of inheritance issues involving kinship and heir disputes.