In New York, when a person dies, an effort is made to locate that person’s next of kin. These efforts can include Internet searches, conversations with friends and family, conversations with the professionals the decedent employed, newspaper searches, as well as newspaper publications. If somebody comes forward alleging that they are the next of kin, then that person must prove their relationship to the decedent.
What is Kinship?
Kinship proceedings are the process by which alleged family members seek to establish their relationship to the decedent, in order to collect the proceeds of a decedent’s estate.
What does an alleged relative have to prove in order to inherit?
In a kinship proceeding, an alleged relative must prove:
- Their relationship to the decedent;
- Eliminate the possibility that there are living relatives who are closer to the decedent (e.g. if the alleged relative is a cousin, then he/she has to prove that there are no surviving uncles/aunts); and,
- Prove that the alleged relative does not need to share the estate with other alleged relatives (e.g. if the alleged relative is a cousin, then he/she has to prove that there are no other surviving cousins).
How is the proof adduced at a kinship hearing?
Proof is made by producing both:
- paper documents; and,
- oral testimony
Acceptable documents include:
- Certified copies of Birth Certificates;
- Certified copies of Death Certificates;
- Wills of decedent and decedent’s prior family members;
- census records;
- tax returns;
- business records.
Acceptable oral testimony includes statements from those who knew the decedent and can advise the Court about the decedent’s family history. The person claiming to be the next of kin cannot make statements about their relationship to the Decedent because it is considered hearsay. The person claiming kinship should bring somebody who is disinterested in the estate that knew the decedent and that could attest to the decedent’s family.
The survivors must prove, by a preponderance of the evidence, that they are the heirs. Although the term seems daunting, the quantum of proof necessary is merely 51%. One must simply prove that it is more likely than not that they are related to the decedent.
What happens if kinship is not proven or if no alleged relative comes forward?
Then the decedent’s assets are deposited with the Commissioner of Finance. The funds are not lost. They can be recovered if/when an alleged relative surfaces.
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