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  • Kevin O'Sullivan

Your Great-Aunt's Fortune or A Kinship Proceeding in New York

When someone dies (a "decedent") without a will ("intestate"), their property must be distributed. In New York, the folks entitled to a share in the decedent's property (the "distributees") are defined by statute and separated into classes. Commonly, we identify these folks as the decedent's relatives--parents, children, spouses, siblings, cousins and so on, throughout the family tree.

At first blush, such a question may seem elementary; after all, who wouldn't know their "relatives"? However, in a time of blended and non-traditional families, multiple marriages, adoptions and foreign divorces, questions about who qualifies as a "relative" have become increasingly complex.

In order to resolve disputes about inheritances and answer questions about relationships, New York law provides a mechanism called a "kinship proceeding" whereby a relative proves its lineage to the decedent. The Court requires specific information regarding the decedent's family. Often, the proof of lineage includes documentary evidence, but may require specific evidence, such as a DNA test. Sometimes, it is necessary to include expert testimony from a genealogist. Now so, more than ever, the presentation of documentary evidence is a challenge, especially when the validity of documents is questionable-as is the case when evidence is required to be obtained from foreign countries.

The burden of proof in a kinship proceeding rests on the person who is claiming a right to receive estate assets. Rules of evidence in kinship proceedings are also very technical. For example, a claimant may take advantage of a legal presumption that a person who would be more than 100 years old on the date the decedent died is presumed to have pre-deceased the decedent. Also, a presumption of death may be applicable if a possible distributee cannot be located after three (3) years following the decedent's death and the Court is satisfied that a thorough search has been conducted.

The Court will consider all the evidence presented during the kinship proceeding before making a ruling and establishing a heir's right to inherit the decedent's property. After all debts and claims have been paid, the administrator can then transfer the assets and close the estate.

Ultimately, if you have a question where you are entitled to inherit from an estate, it is wise to consult with an attorney experienced with kinship proceedings, especially since there are no out of pocket expenses for you. Please feel free to call Peter Zacchea for a free consultation on this matter.

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