When a person dies without a will and is survived by an aunt, uncle, or cousin, or, whenever the Public Administrator acts as the estate’s fiduciary, the survivors bear the burden of proving kinship or that they are related to the decedent.
To meet this burden, the survivors must prove:
- Their relationship to the decedent
- The absence of any person with a closer degree of consanguinity, or blood relation, to the decedent
- The number of persons having the same degree of consanguinity to the decedent or to the common ancestor through which they take.
The survivors must prove, by a preponderance of the evidence, that they are the 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.
How does one go about satisfying the above elements? Let’s evaluate each point.
The relationship to the decedent.
This element can be met by providing certified records and witness testimony to demonstrate your linkage to the decedent. If for example, your maternal uncle, Edward, is the decedent, then you will need to provide your birth certificate, your mother’s death certificate, your mother’s birth certificate, your grandparents’ birth, death, marriage certificates, and census records, and Edward’s birth certificate (Presumably Edward’s death certificate will state Edward’s parents’ names and those names would be the names of your maternal grandparents.) You can obtain these documents through by asking family members, requesting them from Vital Records, accessing them from Vitalcheck, using ancestry.com, or, retaining the services of a genealogist.
The absence of any person who is closer in blood relation than you.
Going back to our example of our maternal uncle, Edward, above, you will need to prove that your mother, and her parents have all died. You will also need to prove that Edward did not have a spouse or any children at the time of his death. You can prove the death of the family members by submitting Death Certificates. You can prove the lack of spouse or child by having a person acquainted with Edward testify as to his bachelorhood.
But what happens if Edward is not your uncle, but rather, your cousin, and you believe, but are unable to prove with any real degree of certainty that Mary, Edward’s niece, has predeceased? Luckily, the law (SCPA 2225) provides you with the benefit of a presumption whereby if you can demonstrate diligent efforts at finding Mary, and more than three years have passed since Edward’s death, then Mary will be deemed to have predeceased Edward.
The number of people having the same blood relation to the decedent.
Under this element, you must prove that Edward did not have any other nieces or nephews, or, if he did, that all the other nieces and nephews, and their children, are dead. Here again, you must rely on certified documents, as well as family pictures, holiday cards, school records, and witnesses who can testify that you are the only living and closest relative.
Additional resources provided by the author
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