When New York Kinship Proof is Needed to Act as an Administrator

stock-vector-blue-kinship-distress-rubber-stamp-1662322042-281x300When a person dies without a Last Will and Testament, he is deemed to have died intestate.  In these matters a petition must be filed with the Surrogate’s Court to have an Administrator appointed to handle estate affairs. A fiduciary is needed for estate settlement. To begin the process to have an Administrator appointed, reference needs to be made to a number of New York estate statutes.

To begin with, Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” must be reviewed to determine the identity of the individuals entitled to inherit the decedent’s assets.  As discussed in numerous posts in the New York Probate Lawyer Blog, the statute sets out a list of people who have priority rights to inherit, such as a spouse, children, grandchildren, parents and others.  The proof as to the right to inherit can be simple, i.e., the surviving spouse, or very complicated if the oldest living heir at law is a cousin or more remove relative.  Maternal and paternal family histories may need to be examined.

Another important statute is Surrogate’s Court Procedure Act (SCPA) section 1001 entitled “Order of priority for granting letters of administration.”  This law, also previously reviewed in this Blog, provides a priority list of the persons who are entitled to be appointed as the estate Administrator.  The priority list is essentially the same as the list of heirs in EPTL 4-1.1 except that in the list of distant heirs, such as a cousin, the appointment would typically be made to the local Public Administrator.

As a practical matter, the Court needs to know and have proof as to the kinship of any person who is seeking to be appointed as Administrator.  In most cases, when a petition for letters of administration is filed with the Surrogate’s Court, there is also filed an Affidavit of Kinship explaining the decedent’s family tree and the right of the petitioner to act as Administrator.  The Kinship Affidavit is usually signed by someone who has long-time knowledge of the decedent’s family and is not interested as a beneficiary of the estate.  When this information is incomplete or difficult to obtain, it may be necessary to utilize a genealogist to perform an extensive search and prepare the affidavit.  The ability to demonstrate kinship and priority for appointment is critical to being granted letters of administration.  There may be estate litigation concerning these matters at the outset of proceedings.  If the Court is not satisfied regarding the kinship proof, it may appoint someone at the outset who has a kinship right and can present clear proof of kinship and reserve the balance of the heirship issue to the final accounting stage of estate distribution.  Sometimes the Public Administrator is appointed due to the lack of clarity regarding the decedent’s next of kin.  Heirs at law are referred to in New York as distributees.

The requirement for proof of heirship was an important factor in a recent Manhattan estate case decided by Manhattan Surrogate Rita Mella on March 10, 2020 entitled Matter of Estate of Walegur.  In Walegur, the daughters of the decedent had obtained an order revoking the letters of administration that were granted to another alleged child of the decedent.  After the revocation order was granted on default, the alleged daughter sought to have the revocation decision vacated because she claimed that her default was due to her attorney’s failure to handle the matter appropriately.  The Court refused to vacate the default based in large part upon the facts presented that the alleged daughter was not a distributee of the decedent.  It appears that a Court ordered DNA test showed conclusively that the alleged daughter was not the biological child of the decedent.  Also, in a divorce proceeding, prior to the decedent’s death, the decedent stated that he did not father a child during a marriage with the daughter’s mother.  Thus, the Court refused to vacate its determination that the alleged daughter’s letters of administration be revoked.

As an estate attorney, I have represented many clients in intestate administration and kinship cases.  Call me now for a free confidential review of your estate case.  We provide reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to Guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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