Due Diligence Affidavit

Due Diligence Affidavit For Probate

Due Diligence Affidavit For Probate

When a person dies with a Last Will and Testament in New York, there are certain steps that are required in order to Probate the Will. If the Decedent was survived by either only one distributee or distributees who are aunts, uncles, or cousins, then the Court will likely require a Due Diligence Affidavit as part of the Probate Petition. 

(Remember a distributee is a person who inherits in the absence of a Will and a beneficiary is a person who inherits under the Will)

 What is a Due Diligence Affidavit?

If you are involved in an estate proceeding in New York State, you may be required to prepare a Due Diligence Affidavit in accordance with Surrogate’s Court Rule 207.16(c) and Surrogate’s Court Rule 207.16(d). A due diligence affidavit is a legal document that provides information about the distributees (family members) of the estate. 

Contrary to popular belief, you do not need a genealogist in order to provide a Due Diligence Affidavit. Note that the due diligence affidavit is not the same as a kinship hearing. In a NYC Kinship Hearing, you may need a genealogist to help close the class of distributees. For a due diligence affidavit, you have to provide information that you know based upon a diligent search of the Decedent’s assets and related searches.

How Do you Prepare a Due Diligence Affidavit?

Here’s a guide on how to prepare a due diligence affidavit in accordance with Surrogate’s Court Rule 207.16(c) and Surrogate’s Court Rule 207.16(d).

Understand the Purpose of the Affidavit

The due diligence affidavit is a legal document that is used to provide information about the distributees (or descendants and family members) in an estate proceeding. The purpose of the affidavit is to disclose any known information about the relatives. 

Gather relevant information

Before preparing the affidavit, it’s important to gather all relevant information.  

Surrogate’s Court Rule 207.16(c) provides, in relevant part, as follows:

(c) If the petitioner alleges that the decedent was survived by no distributee or only one distributee, or where the relationship of distributees to the decedent is grandparents, aunts, uncles, first cousins or first cousins once removed, proof must be submitted to establish:

(1) how each such distributee is related to the decedent; and

(2) that no other persons of the same or a nearer degree of relationship survived the decedent.

Unless otherwise allowed by the court, the proof submitted pursuant to this subdivision must be by an affidavit or testimony of a disinterested person. 

Unless otherwise allowed by the court, if only one distributee survived the decedent, proof may not be given by the spouse or children of the distributee. 

The proof shall include as an exhibit a family tree, table or diagram, except no such table or diagram shall be required if the distributee is the spouse or only child of the decedent.

Surrogate’s Court Rule 207.16(d) provides, in relevant part, as follows:

(d) If the petitioner alleges that any of the distributees of the decedent or others required to be cited are unknown, or that the names and addresses of some persons who are or may be distributees are unknown, petitioner must submit an affidavit showing that he or she has used due diligence in endeavoring to ascertain the identity, names and addresses of all such persons. The affidavit will be deemed to satisfy the requirement of due diligence if it indicates the results obtained from among the following:

(1) examination of decedent’s personal effects, including address books;

(2) inquiry of decedent’s relatives, neighbors, friends, former business associates and employers, the post office and financial institutions;

(3) correspondence to the last known address of any missing distributees;

(4) correspondence or telephone calls to, or internet search for, persons of same or similar name in the area where the person being sought lived;

(5) examination of the records of the Motor Vehicle Bureau and Board of Elections of the state or county of the last-known address of the person whose whereabouts is unknown.

In probate proceedings, the court may accept, in lieu of the above, an affidavit by decedent setting forth the efforts that he or she made to ascertain relatives.

Thus, the Due Diligence Affidavit must be signed by a person who will not receive anything from the estate. 

In addition, the Due Diligence Affidavit must also include a statement that the affiant that answers the following questions:

(1) Has examined the decedent’s personal belongings, including address books, iphone, calendar, or anything that would give the Affiant access to the Decedent’s contact list.  The point of this examination is to say that the Affiant reviewed the Decedent’s possessions and looked to see if they could somehow glean how to get in touch with the Decedent’s next of kin. 

(2) Spoken to the Decedent’s relatives, neighbors, friends, former business associates and employers, and anybody where the Decedent may have banked. The point of speaking with these indivudals is to again, to show attempts to contact or figure out how to contact the Decedent’s distributees. 

(3) Sending a simple letter to the last known address of any missing distributees. The letter can say something as simple as:

“Dear Joe, Jane Doe died. If Jane Doe is related to you, please call us because you may have an interest in Jane’s estate.”

(4) Conducting a google search or an ancestry search. Also, checking the phone book for people with similar names to the people you are looking for. 

(5) In cases where you know the names of the next of kin but do not know where they live, writing to the DMV and Board of Elections of the state or county of the last-known address.

Organize the Information

Once you have gathered all relevant information, it’s important to organize it in a clear and concise manner. You may want to create a spreadsheet or chart that outlines the decedent’s  known distributees. You should also include any relevant documentation, such as copies of wills or trust documents.

Draft the Affidavit

You should draft the diligence affidavit in accordance with Surrogate’s Court Rule 207.16(c) and Surrogate’s Court Rule 207.16(d). The Affidavit should contain a statement that the fiduciary has made reasonable efforts to identify all interested parties. You must detail all of the steps that you took. The Affidavit should also include exhibits. These exhibits should be: copies of the Decedent’s address book, addresses saved in Decedent’s phone, google searches, ancestry searches, census records, copies of find a grave, copies of the Social Security Death Index, copies of any letters written to the potential distributees as well as copies of the envelope used to mail the letters, and any and all other correspondence. 

Have the Due Diligence Affidavit Notarized

Once you have prepared the affidavit, you should ask the fiduciary to sign it before a notary. The notary will verify the identity of the fiduciary and ensure that they signed the affidavit voluntarily and under oath.

File the Due Diligence Affidavit with the court

You should file the due diligence affidavit with the Surrogate’s Court as part of the estate proceeding. The court will review the affidavit to ensure that it complies with Surrogate’s Court Rules 207.16(c) and 207.16(d). The court may request additional information or documentation if necessary. Typically, once you have filed the Affidavit of Due Diligence, if you are in fact NOT able to locate all distributees, then the Court will very likely direct you to submit a proposed Order for Publication and Citation. The Order for Publication will allow you to publish the Citation in the newspaper. By publishing in the newspaper, you can effectuate service of process of knowns whose whereabouts are unknown. You can also effectuate service of process upon unknowns.

Preparing a Due Diligence Affidavit in accordance with Surrogate’s Court Rules 207.16(c) and 207.16(d) is an important part of a New York estate proceeding. It is important to provide accurate and complete information about the estate. This way, the fiduciary can avoid legal disputes. The fiduciary can also ensure that the beneficiaries receive their rightful share of the estate assets.

For more information, please contact NYC Probate Litigation, Guardianship, NYC 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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This page is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. ATTORNEY ADVERTISING.

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