Kinship Proceedings in Surrogate’s Court: What They Are, How They Work, and How They’re Won

In a Kinship Proceeding, the New York Surrogate’s Court seeks to determine who is entitled to inherit from the estate of a deceased person who did not have a Will. The Surrogate’s Court is the court in New York State which handles most matters regarding death. When someone dies without a Will they are said to die “intestate”. The person who died is formally known as the “decedent”.

If a New Yorker dies without a Will (intestate), a statute kicks in to determine who is entitled to inherit. For example, Mr. Decedent dies without a Will, and is not survived by a spouse, children, parents, siblings, or grandparents. In such a case, the “issue” of Mr. Decedent’s grandparents (likely cousins) would be entitled to inherit from Mr. Decedent’s estate. But the Court cannot allow Mr. Decedent’s money and property (the estate “corpus”) to be distributed until it is clear to the Court who is entitled to the property. The people claiming a right to inherit are known as the “alleged heirs” or “claimants”.

Therefore, the Court holds a Kinship Hearing to determine the rightful heirs of the decedent’s estate (in legal parlance, the “distributees”).

When are Kinship Proceedings Required?

Kinship Proceedings are required in a variety of circumstances, for example:

  1. There are multiple people claiming the right to act as “administrator” of the decedent’s estate, and the Court needs to know how, and if, these people are related by blood to the decedent to determine who has a right to act as administrator.
  2. It is not clear who is a “distributee”, i.e., a person entitled to inherit from the decedent’s estate.
  3. The Public Administrator, a government agency, is the administrator of an estate, and is required to account and distribute assets. Before the Public Administrator can settle its account and close the estate, it must be sure it knows who the rightful distributees are.

How Does a Kinship Proceeding Work?

As noted, the people claiming to be distributees (those entitled to inherit) are called “alleged heirs” or “claimants”. The legal burden of proof is on the alleged heirs. They must prove by a preponderance of the evidence that they are the actual heirs of the decedent’s estate.

A Kinship Proceeding will result in a Kinship Hearing, which is best described as a small trial. For the most part, the same rules of evidence and procedure that are followed during a trial in New York are followed in a Kinship Hearing. However, a Kinship Hearing is generally much more informal than a trial, and the parties sometimes stipulate to have the case held before an Attorney Referee, instead of the Judge. At the same time, the Judge may also “refer” the case to a Referee on its own initiative.

In the months leading up to the Kinship Hearing, the claimants will begin collecting proof and evidence of their blood relationship to the decedent. Experienced attorneys know that hiring a professional genealogist to perform research, investigate, write a report, and testify at the Hearing, is often the surest way to success. With the help of the genealogist, the attorney for the claimants can prepare a Family Tree to help guide the Court and parties through the Hearing with clarity and ease.

The claimants themselves may already be in possession of the decedent’s property or other evidence that can buttress their case. For example, the claimants may be in possession of, or have access to, birth certificates, death certificates, books, diaries, letters, photos, and other materials the decedent owned which evidence a familial relationship. The complex rules of evidence govern the admissibility of these items into evidence at the Hearing. The claimants may also be aware of “disinterested witnesses”. A disinterested witness is a person who knew the decedent’s family well, but is not entitled to inherit, such as a close friend or long-time neighbor. The disinterested witness’s testimony can buttress the claimants’ case. Documentary evidence coupled with testimony of witnesses is an essential element of success at a Kinship Hearing.

Who are the Parties to a Kinship Proceeding?

The parties to any Kinship Proceeding include:

  1. The claimants a/k/a the alleged heirs, who are the people claiming that they are entitled to inherit.
  2. A “Guardian ad Litem”. Don’t let the name fool you. A Guardian ad Litem is not a “guardian” in the usual sense. A Guardian ad Litem is an attorney appointed by the Court to represent the interests of “unknown distributees” and/or “distributees whose whereabouts are unknown”. Because there could be other people entitled to inherit that are not aware of the proceeding or known to the Court or parties, the Court appoints the Guardian ad Litem to protect their interests and issue a report after the Hearing. The potential existence of unknown distributees requires a Citation to be published in a newspaper.
  3. The Public Administrator is a party to the vast majority of Kinship Proceedings in New York City because the Public Administrator is usually acting as the estate’s administrator (i.e., fiduciary).
  4. The Attorney General of the State of New York, pursuant to statutory requirements.

Does a Judge Try the Case?

A Surrogate Judge can certainly try a Kinship Hearing, but the Referee generally oversees the Hearing and reports its findings of fact and conclusions of law to the Judge. The Referee generally reports, in writing, to the Judge, but the parties may agree to waive the requirement of a written report. This is usually done by oral stipulation on the record

What Happens After the Hearing?

After the Hearing concludes, the Referee issues its report. The Referee is said to “hear and report”, but the Referee’s report is not final and binding. Although the Surrogate Judge usually confirms the report (agrees with its findings), it does have complete discretion to reject or accept it (in whole or in part), to modify the report, or to direct a new Hearing.

The Guardian ad Litem will also issue its report. The report is almost always in writing, but can be made orally in open Court with consent of the Surrogate Judge. As a matter of course, the Guardian ad Litem can take quite some time preparing a report, especially if the proceeding was particularly complex.

The Judge will make a final decision based on the Referee’s report and Guardian ad Litem’s report.

What happens after the Judge renders its decision depends on the findings. For example, if the alleged heirs A and B claim they are the only rightful heirs, and their case is successful, the funds will be distributed in equal shares (i.e., 50%) to each A and B. If the ruling is adverse to A and B, they do not have a right to appeal, but they are allowed to make a motion to deny the findings in the report.

How are Kinship Hearings Won?

I can never guarantee success in a Kinship Proceeding – no attorney can. But there are common elements that make for a successful Hearing.

  1. It sounds obvious, but the claimants must actually be the rightful heirs. The burden of proof is high, and the Court must be satisfied it knows the true heirs before it makes an Order directing distribution of funds.
  2. The claimants’ attorney is able to “close the class”, meaning it can be demonstrated that the alleged heirs are actually the closest living blood related relatives to the decedent.
  3. A professional genealogist is hired to make a report and testify.
  4. The attorney for the claimants, with the help of the genealogist its clients, is able to gather enough admissible evidence to substantiate the claim.
  5. The Family Tree is clear and complete so the parties can interpret and digest the information they are given at the Hearing.
  6. The attorney has enough time to prepare the case, and enough experience to know how to work strategically and persuade the Court.
  7. The documentary evidence is supported, and buttressed, by testimony from disinterested witnesses who can speak to the Family Tree.

How Do I Become (or Know) if I am a Claimant or Alleged Heir?

People find out they are an alleged heir or claimant in a variety of ways:

  1. They are close to their deceased relative and are in contact with the Court or administrator soon after the decedent’s death.
  2. They find out after receiving a “Citation” or other legal document personally notifying them of their potential right to inherit. This usually occurs after the Public Administrator’s accounting, which is the part of the administration proceeding where the Public Administrator needs to determine who is entitled to inherit so distributions can be made to the rightful persons.
  3. They learn about the Kinship Proceeding by reading the Citation in a newspaper (this is rare).

How Do I Know if I am Entitled to Inherit?

This depends. The statute is complex. The short answer is that the closest living ancestors of the decedent, as determined by statute, inherit. But this is only something that I can determine with precision after a conference with prospective clients.

Kinship Proceedings are Complex

If you or a client of yours believes he or she is a rightful heir to a decedent’s estate, you are encouraged to contact me at 646-820-4011 or I handle all matters regarding Kinship Hearings and Surrogate’s Court proceedings in New York State.

Categories: Estate Litigation