Kinship hearings

In cases that require intestate administration, the accounting proceeding is the stage at which all activities and issues must be finally resolved. As part of the accounting, the fiduciary must make a final determination of who the decedent’s heirs were so that assets can be distributed and the fiduciary can be discharged.

In many estates, the heirs have either been known to the fiduciary or have been established through affidavits at early stages of the administration. When some questions of lineage do remain, the fiduciary has usually done preliminary research and made reference to “alleged heirs” or to heirs who may exist but are “unknown.”

Typically, “alleged heirs” often consist of cousins who have come forward with a claim, but the validity of their status is not clear and questions remain about whether there may be other heirs with equal or superior claims. (See Statutory Foundation for Kinship Proceedings for a description of the statutory standards.) The relative remoteness of their lineage, coupled with their potential right to inherit requires a formal kinship proceeding to confirm their status.

At this point, counsel representing “alleged heirs” objects to the fiduciary’s proposed accounting, asserting that the “alleged heirs” are, in fact, the heirs and are entitled to inherit their appropriate percentages of the estate. The interested parties are any alleged claimants (heirs), other claimants, the fiduciary, and the attorney general of New York State because the state maintains an interest in the outcome of this proceeding. If heirship is ultimately unproven or partially proven, a certain fraction of the estate may pass to New York State.

As a matter of course, the Court appoints a guardian ad litem to represent the interests of any potential unknown heirs. In many kinship matters, the fiduciary is often the counsel to the public administrator, either because no one else has taken the initiative to resolve the estate, or the heirs involved are sufficiently distant. As part of his relief, the claimant requests a kinship hearing to determine the identity of the distributes.

The burden of proof is at all times on the claimant, or alleged heir. The standard of proof is a preponderance of the evidence. This standard is based upon a degree of probability and has been defined as “persuading the triers of fact that the existence of the fact is more probable than its non existence.” Ultimately, a claimant must demonstrate that he/she was either the closest blood relative to the decedent, or among a class of equally close blood relatives as defined in the parameters of EPTL § 4-1.1.[9]

The Civil Practice Law and Rules (CPLR) apply as they would in any civil trial. The discovery devices are also fully available, yet, practically speaking, are extremely limited. This is not a traditional hearing or trial. Often, all other interested parties have absolutely no knowledge regarding any aspects of a claimant’s lineage. Thus, discovery here is often not focused on the adversary but consists of a thorough investigation of family information and relationships from a variety of sources. The admissibility of this evidence is discussed below, but the key element is that the focus should be on searching both for individuals who know the claimant’s family history, and for various documents reflecting that history.

The personal effects of the decedent are usually an excellent starting point. Normally, these are in the possession of the fiduciary, often the public administrator. Once the authority of counsel to represent a claimant is established, these effects must be made available for review. They may consist of letters, photographs, address books, personal notes, vital statistics records, or other important memoranda. Further, counsel’s own investigation is often more effective. The search for those with knowledge of the family may include relatives, neighbors, clergymen, business associates, friends, or employees. Not every individual is expected to have a full and thorough knowledge of the entire family, maternal and paternal sides. Yet, to the extent that isolated areas of knowledge can be acquired from sufficient people, an entire family portrait may be pieced together.

The search for documentary evidence is equally important. Documents can establish tangible proof of the existence and identification of decedent’s blood relatives, thereby providing the necessary link in the genealogical chain to the claimant. This evidence includes vital statistics records (birth, death, and marriage), census records, cemetery (burial) records, naturalization and immigration records, Court records (surrogate, matrimonial, adoption), church records, Holocaust records, and military records. The nature of records essential to an individual case varies, but it is only limited by one’s imagination.

Many records can be obtained by a letter requesting such records containing the reasons for request, and payment of the appropriate fee. In the event that records are not forthcoming or sealed, a court order may be issued and will often produce the records. It may be advisable to retain a certified genealogist to assist counsel in their search. A genealogist is acutely aware of the necessary steps in establishing heirship, may have more ready access to difficult to reach sources of information, and can ordinarily complete a search within a set time frame. Upon all evidence, both oral and documentary, constituting proof of kinship being marshaled, the hearing can proceed.

Unfortunately for the claimant, the concept of transaction or communication is broadly defined. It applies to a wide range of behavior involving the claimant and the decedent, including all forms of conduct and language. It embraces every “variety of affairs which can form the subject of negotiations, interviews, or actions between two persons.” Thus, the claimant cannot testify to any conversation or correspondence between the decedent and himself.

Individuals not interested in the event (those who do not stand to inherit) are not barred from testifying. For example, a claimant’s spouse or friends, if present at a certain conversation between the claimant and the decedent, can provide admissible testimony about their personal knowledge of an event. If the decedent constantly refers to the claimant as his “favorite cousin” or his “sole surviving cousin,” the claimant cannot testify but friends or a spouse would be able to substantiate that statement.

The statute effectively describes how to build a “family tree,” providing a schemata for the proximity of family ties and identifying the “distributes” who qualify as heirs of the decedent.

Spouses and children have the highest priority. The spouse receives the first $50,000 and half the balance of the net estate after deducting traditional debts, taxes and expenses. Issue of the decedent receive the other half. “Issue,” by definition, are descendants from a common ancestor. They are often the decedent’s children. If there are no issue, the spouse receives everything. If there is no spouse, the issue inherit everything.

If no spouse and no issue survive, the priority for inheritance consists of, in descending order, parents, siblings/nieces/nephews, grandparents, uncles/aunts/first cousins, and first cousins once removed.

If issue inherit, they generally take “by representation,” which essentially means an equal distribution at each generational level. Suppose that the decedent, D, is survived by one child A; V and W, who are children of predeceased child B; and X, Y and Z who are children of predeceased child C. A chart for this scenario would look like this:

There are three lines of inheritance. If all children (A, B, C) survive the testator, each is entitled to one-third of the net estate. At A’s generational level, only A survives, so A takes his one-third share. The next complete surviving generational level is that of the testator’s grandchildren, V, W, X, Y and Z. The remaining two-thirds is divided equally among each member of that level, so that V, W, X, Y and Z each take two-thirds divided by five units or two-fifteenths of the net estate each.

A decedent’s relatives of the half blood are treated as if they were relatives of the whole blood.
Thus, siblings who share just one parent may inherit as if they were full siblings.

If grandparents or their issue (cousins of the decedent) are the only survivors, the maternal and paternal sides are divided in half with respective issue sharing only their respective half. In the absence of issue on one side, the other side’s issue could share in the whole. These rules of intestate succession provide the numerical guidelines for distribution of the decedent’s property, and they further place a legislative imprimatur on the priority of the familial relationships.