New York Kinship Proceeding Process

New York Kinship Proceeding Process

When a New York resident dies without a valid last will and testament, state law determines who is entitled to receive the deceased person’s property. In these cases, the New York Surrogate’s Court appoints an estate administrator to distribute estate assets in accordance with the law.

Determining who is entitled to receive an inheritance is not always a straightforward task. A kinship proceeding may be required when those claiming to be related to the deceased are more distant relatives, such as cousins. New York law requires significant proof from alleged heirs before determining that they are entitled to inherit from the estate.

Working with a knowledgeable and experienced New York kinship attorney will increase the chances of a favorable outcome. Attorney Daniel J. Reiter has extensive experience in New York Surrogate’s Court and can help you establish kinship and prove that you are entitled to an inheritance.

Defining Kinship Terms

It is helpful to understand terms used in New York State kinship proceedings:

  • The Decedent is the person who died
  • The Estate is the decedent’s property
  • Someone who died Testate had a properly executed Last Will and Testament
  • Someone who died Intestate did not have a Will
  • The Alleged Heirs or Claimants are people who may be entitled to receive property from the decedent’s estate
  • The Distributees are the people who are legally entitled to receive property from the decedent’s estate when there is no Last Will and Testament
  • The Administrator is the person appointed to oversee the estate of someone who died intestate
  • A Guardian ad Litem represents the interests of any unknown distributees who may be entitled to inherit property from the decedent
  • A Public Administrator often acts as the administrator of the estate
  • The New York Attorney General may be a party to kinship proceedings due to statutory requirements

When Are Kinship Proceedings Necessary?

A kinship proceeding is often required to determine:

  • Who is entitled to inherit from the decedent’s estate
  • Who will serve as the administrator of the estate

In many kinship proceedings distant relatives, such as cousins of the decedent, often from different sides of the family, may claim to be entitled to parts of the inheritance and must prove their relationship to the deceased.

Because the distribution of a decedent’s estate depends on the relationship between the alleged heirs and the decedent, New York courts take a careful look at kinship claims and require that the alleged heirs prove, by a preponderance of the evidence, their relationship to the decedent and that they are entitled to an inheritance. “Preponderance of the evidence” means that it is more likely than not that the claim is true.

The Kinship Process

A kinship hearing is like a small trial that is held in Surrogate’s Court to determine the actual heirs of the decedent’s estate. The alleged heirs bear the burden of proof to show, by a preponderance of the evidence, that they are the actual heirs of the decedent’s estate and are entitled to receive the decedent’s property.

To prepare for a kinship hearing, the alleged heirs must collect evidence to prove their relationship to the decedent. This may include evidence from a professional genealogist who can conduct research, investigate, and testify at the hearing.

In many cases, a kinship attorney will prepare a family tree to help prove the relationship between the alleged heirs and the decedent.

Evidence that is commonly used to prove kinship includes:

  • Birth certificates
  • Death certificates
  • Books
  • Diaries
  • Letters
  • Photos

Oral testimony is also required. New York’s rules of evidence govern what evidence may be considered to establish kinship.

The Kinship Hearing

The kinship hearing is overseen by the surrogate judge or a referee.

When a kinship case is filed, the judge or referee will usually schedule a pretrial conference, grant time for discovery, and set a date for a hearing. The date of the hearing is crucial because all proof must be completed by the alleged heirs or claimants within that specified period of time.

Once the kinship proceeding has concluded, the surrogate judge or referee will issue their findings of fact and conclusions of law. The guardian ad litem will also issue a report. The judge will usually make a final decision based on the reports of the referee and the guardian ad litem.

Do You Need an Attorney for a New York Kinship Hearing?

Even though kinship proceedings may sound straightforward, they are unexpectedly complicated. For example, a person may be prevented from testifying under the “dead man’s statute,” which sometimes prohibits the introduction of testimony regarding conversations between a decedent and a person claiming they are entitled to inherit.

An alleged heir may need to provide testimony from a disinterested witness who can testify about the decedent’s family tree. Someone seeking to inherit from a decedent who died intestate will often need to provide documents to support the family tree, such as certified birth certificates and death certificates.

An experienced New York kinship attorney can assist you in locating and submitting these documents and, in many cases, will work with a qualified and reputable genealogist who can help establish your right to an inheritance.

The Law Firm of Daniel J. Reiter, Esq. : Your Guide to New York Kinship Proceedings

If you believe you are entitled to an inheritance from a relative who died without a valid will, New York kinship attorney Daniel J. Reiter can help. New York kinship proceedings are complex, and working with an experienced kinship attorney will increase the likelihood of a positive outcome.

The Law Firm of Daniel J. Reiter, Esq. handles all types of kinship matters and Surrogate’s Court proceedings in New York City, Long Island, and Westchester County, and helps heirs receive the inheritance to which they are entitled.

Learn more about New York kinship attorney Daniel J. Reiter, read testimonials from other people he has helped, and get answers to Frequently Asked Questions. Then contact the Law Firm of Daniel J. Reiter, Esq. today to schedule a confidential consultation to discuss your situation.

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Frequently Asked Questions

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.

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.

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