New York Kinship Determinations Require A Due Diligent Search

Surrogate’s Court cases such as probate proceedings and intestate administration proceedings have many different requirements. However, one common necessity in all these matters is that the Court must be provided with complete information regarding a decedent’s next of kin (“distributees”). Full details regarding family members is necessary so that all persons who are interested in the estate can receive proper notice regarding the Court case.

In an intestate administration proceeding the decedent’s distributees are the person’s entitled to receive a share of the estate and also may be entitled to be appointed as the administrator. When there is a petition to probate a Last Will, the distributees must be listed so that they receive proper notice regarding the probate matter and can Contest the Will if they decided to do so.

In most instances, determining the decedent’s distributees is rather easy such as where a person is survived by a spouse or children or other close relatives. However, there are many situations where families are estranged and the closest living relatives may be distant relations such as cousins who have had little or no contact with the decedent during his lifetime. Also, the unknown relative may live in distant locations such as foreign countries.

The New York Probate Lawyer Blog has published many posts regarding the problems encountered in proving kinship in Surrogate’s Court litigation. The Court requires that the person petitioning for relief perform a due diligent search to locate any unknown or missing heirs. The Court may also require a Kinship Hearing in which proof as to a person’s distributees can be shown. A due diligent search requires a thorough review and presentation of kinship records such as marriage certificates, birth certificates, death records, obituaries and other sources that can verify the existence or non-existence of the decedent’s relatives. Very often it is necessary to hire the services of a professional genealogist to perform these searches.

I have represented many clients in probate and administration cases where it was necessary to prove kinship. I have also had matters involving Kinship Hearings. A recent example regarding the need to prove kinship is shown by the decision of Bronx Surrogate Nelida Malave-Gonzalez dated July 28, 2016 in the Estate of Barbara Singleton. In Singleton the decedent died and left a Last Will which disposed of the estate in the first instance to the decedent’s parents.  Although it was shown that the decedent’s mother had pre-deceased the decedent, there was little information regarding the father. After a due diligent search for the father, the Court was able to rule that the father was pre-deceased by referring to Surrogate’s Court Procedure Act (SCPA) 2225. This statute allows the Court, after a diligent search and the passing of 3 years after the death of the decedent, to find that such person presumptively pre-deceased the decedent without issue. Thus, SCPA 2225 helps to eliminate the prospect of an estate being forever unsettled when a potential distributee cannot be located.

If you have a question or issue regarding Kinship Proceedings in Surrogate’s Court, call me for a free review of your matter.   New York trusts and estates attorney Jules Martin Haas, Esq. has been representing clients in Estate Administration proceedings throughout the past 30 years.  I have represented clients in many counties including Suffolk and Westchester Counties.  If you or someone you know is involved with or has questions about a Last Will or other aspects of Probate or Estate Administration, please contact me at (212) 355-2575 for an initial consultation.

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