Who has the burden of proof in a Kinship Proceeding?

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.

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Frequently Asked Questions

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.

If I am appointed guardian, can I force my ward to take psychiatric medication?

Although most guardians are authorized to make routine and non-routine medical decisions on behalf of their ward, the administration of psychiatric medication to a person who objects requires special authorization from a judge, even if you were already appointed guardian.

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.

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