What is the difference between a guardian and a conservator?

Generally, none. New York used to use the terms conservator (today’s version of guardian of the property) and committee (today’s version of guardian of the person). Many states still use the term conservator, but the concept is the same.

If I petition to have a guardian appointed in a Mental Hygiene Law Article 81 proceeding, will I have to serve as guardian?

No. Even if you are the “petitioner” – the person who is asking the judge to appoint a guardian – you can ask the judge to appoint someone else. If there are no family or friends willing and able to serve, the judge can appoint a non-profit organization or “independent” professional guardian to serve.

My disabled child is about to turn 18. Am I automatically able to make decisions for them when they turn 18?

No (except for limited exceptions). In New York, parents are the natural guardians of their children until age 18. However, once a child reaches 18, even if they are developmentally or intellectually disabled, a parent cannot automatically make decisions for their adult child. Guardianship is often necessary for developmentally and intellectually disabled adults who do not have capacity to manage their own affairs without assistance.

How long does it take to get a guardian appointed and authorized to act in a Mental Hygiene Law Article 81 proceeding?

There is no set time. However, from the time counsel is retained, it usually takes about 2-4 months total for the guardian to begin acting. However, if a guardian is needed immediately, the judge can appoint a “temporary guardian” while everything gets sorted out. This speeds up the process.

When is a Kinship Proceeding Necessary?

A Kinship Proceeding in New York Surrogate's Court is necessary primarily in two circumstances:

First, a Kinship Proceeding is often necessary when it is unclear who is entitled to inherit from a deceased person's estate. In New York, a deceased person is called a "decedent".

Second, a Kinship Proceeding is sometimes required to determine who will serve as administrator of an estate when the decedent died without a will and it is unclear who has the right to serve as administrator above all others. An "administrator" is like an executor of an estate of a person who died without a will. Dying without a will is known as dying "intestate".

Who has the burden of proof in a Kinship Proceeding?

In order to establish their rights as persons entitled to inherit (known as "distributees"), the  alleged heirs (or "claimants") in a kinship proceeding must prove: 

1) their relationship to the decedent;

2) the absence of any person with a closer degree of consanguinity to the decedent; and

3) the number of persons having the same degree of consanguinity to the decedent or to the common ancestor through which they take.

Claimants who allege to be distributees of the decedent have the burden of proof on each of these elements.

The quantum of proof required to prove kinship is a fair preponderance of the credible evidence. This means that the alleged heirs must prove that it is more likely than not that they are the distributees of the decedent (or, simply put, that they are entitled to inherit).

The burden of proof is always on the claimants.

What is the Role of the Public Administrator in a Kinship Proceeding?

The Public Administrator is an agency of New York City. Each county of the City of New York has its own Public Administrator. 

In a Kinship Proceeding, the Public Administrator’s role is almost always that of the estate’s administrator. An administrator is just like an executor of an estate, but an administrator is an “executor” for an estate of someone who died without a will.

Once the Public Administrator has administered the estate (for example, collected money, sold real estate.) they will file (with the court) and serve (on the parties and persons interested) an accounting, verified under oath, and seek to distribute the assets. In this regard, the Public Administrator is the “petitioner” in an accounting proceeding. 

In counties outside of the City of New York, the role of the Public Administrator is often handled by the County Treasurer.

How does an alleged heir object to the administrator’s accounting and request a Kinship Hearing?

After the administrator (usually the Public Administrator) has administered the estate (e.g., collected money, sold real estate, etc.) they will file (with the court) and serve (on the parties and persons interested) an accounting, verified under oath, and seek to distribute the money and property in the estate. 

The administrator will list in the account as “alleged heirs” those persons who they believe may be entitled to inherit. Of course, the alleged heirs who believe that they are heirs will have a problem with this. The alleged heir who objects to being called an “alleged” heir will file a legal document called an “objection” with the Surrogate’s Court, arguing that they are, indeed, an heir (not alleged). 

This is the most common scenario that gives rise to a kinship proceeding in New York Surrogate’s Court.

Should I hire a genealogist?

This is a very common question, and the answer really depends on the complexity of the case.

If the estate is large and the facts are complex, the services of a genealogist are usually recommended. For example, if the person who died - known as the “decedent” (not to be confused with “descendant”) had a $1 million estate, is a first generation U.S. citizen, and many of the historical records necessary to prove kinship are overseas, it would be prudent to retain a genealogist specializing in the decedent’s country of origin. 

On the other hand, if the decedent was a third or fourth generation U.S. citizen, lived in New York City their entire life, and their family tree is clear, than a genealogist probably isn't necessary. It would be more cost effective for our law firm and the client to do the primary leg work in retrieving proof of kinship. 

For small, but complex estates, the decision to hire a genealogist may be less clear, but weighing the size of the estate against the cost of a genealogist can help guide the decision.