What is Is an Affidavit of Heirship for Surrogates Court and How Do We Use it?
An Affidavit of Heirship (often called a Family Tree Affidavit) is a sworn statement—usually from a disinterested person—that identifies a decedent’s family members (“distributees”) and explains who inherits under EPTL 4-1.1/4-1.2. New York Surrogate’s Courts commonly request it to confirm next of kin in probate (even when there is a Will) and in intestate administration (no Will). It does not replace Letters Testamentary or Letters of Administration; it helps the Court decide who must be served and who has priority to act.
RK Law tip: Different counties (Kings, Queens, New York, Bronx, Richmond) may have slightly different forms.
Using What Is an Affidavit of Heirship for Surrogates Court
- Intestate (no Will) petitions (SCPA 1001): to prove who the distributees are and who has priority to be appointed Administrator.
- Probate (there is a Will) (SCPA 1403): to identify distributees who must be notified even if they are not beneficiaries under the Will.
- Kinship issues (Uniform Rules 22 NYCRR 207.16; SCPA 2225): to support or narrow kinship proofs if heirs are missing, nonmarital parentage is at issue, or adoption affects inheritance.
Who Should Sign an Affidavit of Heirship for Surrogates Court?
- A disinterested witness (not inheriting, not a spouse/partner of an heir), often a long-time family friend, clergy, neighbor, or professional who knows the family history.
- Some courts (or situations) prefer multiple disinterested affidavits along with an Affirmation of Due Diligence when records are thin or kinship is complex.
What Should an Affidavit of Heirship for Surrogates Court Include
A clear, factual family tree narrative with:
- Decedent’s full name, date/place of birth and death, last residence.
- Marital history, divorces/annulments, and all children (including adopted and nonmarital children).
- Predeceased relatives (spouse, children, parents, siblings) and whether they left descendants.
- Name changes, alternate spellings, and immigration details if relevant.
- A chart of relatives by degree (parents → children → grandchildren; siblings → nieces/nephews).
- Statement that the affiant is not a beneficiary and how they know the facts (duration/quality of knowledge).
Exhibits are not typically attached to Affidavits of Heirship but ARE attached to Affirmations of Due Diligence. Typical exhibits for due diligence affirmations: certified vital records (death, birth, marriage), obituaries, census or naturalization records, hospital or baptismal records, adoption orders, paternity acknowledgments or court orders, and prior court decrees.
Affidavit of Heirship for Surrogates Court vs. Similar Documents
- Family Tree Affidavit: Often the same thing in NY practice; many courts use the terms interchangeably.
- Affidavit of Voluntary Administrator (SCPA 1301): a small-estate procedure affidavit—not the same as heirship proof.
- DMV “Affidavit of Heir/Next of Kin” (vehicle transfer): agency-specific; does not take the place of Surrogate’s Court authority.
- Title company heirship forms: May help for title clearance but usually still require proper estate authority in NY.
What an Affidavit of Heirship Cannot Do
- It is not Letters: It does not authorize you to collect assets, sell real estate, or close accounts.
- It does not guarantee kinship: The Court or a title company can demand more proof, a kinship hearing, or additional affidavits.
- It won’t cure missing service: You still must serve all required parties properly.
How We Prepare & File (Step-by-Step)
- Intake & family map: We interview you, draft a family tree, and spot gaps (nonmarital parentage, foreign records, adoptions).
- Select affiant(s): We help you choose disinterested witness(es) and prepare them.
- Collect documents: We order certified vital records and gather secondary proofs where necessary.
- Draft & notarize: We prepare the affidavit, exhibits, and any needed translations/apostilles.
- File with the petition: We submit in support of probate or administration via NYSCEF (where available), then address any Clerk/Judge notes.
- Next steps: If kinship is contested or unclear, we manage discovery and, if required, a kinship hearing with genealogical proof.
Common Pitfalls of an Affidavit of Heirship for Surrogates Court (and How We Avoid Them)
- Nonmarital parentage (EPTL 4-1.2): Courts may require specific proofs (acknowledgment of paternity, orders of filiation, DNA, or clear and convincing evidence).
- Name/translation mismatches: We reconcile spellings and provide identity cross-proofs.
- Unknown heirs (SCPA 2225): We coordinate diligent searches, publication, and guardian ad litem issues.
- Out-of-state/foreign affiants: We handle notarial formalities, apostille/legalization, and certified translations.
- Assuming one affidavit is “enough”: Some files need multiple affidavits plus records.
Timeline & Cost Expectations (Not Legal Advice)
- Simple families with solid records: affidavit prep in days; overall Court process typically weeks to a few months, depending on county volume.
- Kinship or missing-heir cases: expect months longer for investigation and potential hearings.
- We’ll scope a flat or staged fee once we review your facts.
Short Template of an Affidavit of Heirship for Surrogates Court (For Illustration Only—We Will Customize)
AFFIDAVIT OF HEIRSHIP / FAMILY TREE
State of New York )
County of ____ ) ss.:
I, [Name], being duly sworn, depose and say:
- I am over 18, not related to [Decedent], not a beneficiary of the estate, and have known the family since [year].
- [Decedent] died on [date] in [place], last resided at [address].
- Marital/children history: [detail spouse(s), dates, children (including adopted/nonmarital), predeceased relatives and issue].
- Family tree: [attach chart].
- To my knowledge, there are no other surviving distributees.
[Signature] (Notary acknowledgment)
FAQs: Affidavit of Heirship in NY Surrogate’s Court
A sworn statement (often by a disinterested witness) identifying the decedent’s relatives and explaining who inherits under EPTL 4-1.1/4-1.2. Courts use it to verify next of kin for probate/administration.
Someone not inheriting and not married to/partnered with an heir, who has reliable knowledge of the family (friend, neighbor, clergy, professional, etc.).
Sometimes. If records are limited or kinship is complex, courts or title companies may ask for multiple disinterested affidavits and additional documentation by way of an Affirmation of Due Diligence.
Usually no. You generally still need Letters from the Surrogate’s Court. The affidavit supports the Court file; it’s not independent authority.
They may inherit under EPTL 4-1.2 (nonmarital) and EPTL 4-1.1 (adopted), but courts often require specific proof (acknowledgments, orders, adoption decrees).
Expect diligent-search requirements, possible publication, a guardian ad litem, and, if needed, a kinship hearing (SCPA 2225).
The legal framework is statewide, but local practice varies. Our team files in Kings, Queens, New York, Bronx, and Richmond and tailors proof to each court’s expectations.
Need help proving next of kin or preparing an Affidavit of Heirship? RK Law PC guides families through Kings, Queens, Manhattan, Bronx, and Staten Island Surrogate’s Courts. We’ll map your family tree, gather the right proofs, and file everything correctly the first time.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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