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Kinship Proceedings in New York Surrogate's Court

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Kinship Proceedings in New York Surrogate's Court

This program will provide a detailed overview of kinship proceedings in the New York Surrogate's Court from commencement to conclusion. When a person dies without a will, and the closest living relatives are distant (like cousins) a kinship proceeding is often necessary to determine who is entitled to inherit from the decedent's estate. This course will define what a kinship proceeding is, the various parties to a kinship proceeding, the substantive and procedural laws that govern kinship proceedings, and the tools and strategies necessary for success. Kinship proceedings are governed by an amalgamation of laws and regulations. This course provides an easy-to-use, organized guide to kinship proceedings.

Transcript

- [Daniel] Hello, I'm Daniel Reiter. I'm an attorney in New York City. My primary areas of practice are adult guardianship and surrogate's court practice. And I do quite a bit of kinship work as well. One of my main focuses are kinship proceedings in New York surrogate's court and that's gonna be the topic of our presentation today. And so what I want to do in today's presentation is talk about kinship proceedings from beginning to end and give a very general overview of what they are, how they work, and how to be successful with them. And so some of the topics we'll go over is when a kinship proceeding is necessary, which also helps explains exactly what a kinship proceeding is, who the parties are to a kinship proceeding, some of the procedural issues that will arise during a kinship proceeding. I want to talk a bit about the burden of proof in a kinship proceeding, who has to prove relations in a kinship proceeding. It's very important to understand burden of proof because without understanding it, success is very difficult. How to win, so how to be successful in a kinship proceeding and some of the evidentiary rules that apply in kinship proceedings. So to understand what a kinship proceeding is and when they're necessary is really almost explains the other. So there's really two primary scenarios when a kinship proceeding is necessary in New York surrogate's court. One is to determine who is entitled to inherit from a decedent's estate. And the other is to determine who is entitled to serve as administrator of a decedent who died intestate. Intestate meaning dying without a will. So in most cases, in a typical kinship proceeding, somebody has died and they have died without a will. Again, this is general. They've died without a will and their closest living relatives are very remote, often cousins. Sometimes these cases are informally referred to as cousins cases. The issue is that the judge doesn't know for sure who's entitled to inherit from this person's estate. The people are just so remote cousins that the court requires a higher degree of proof than they normally would. So what often will happen, the timing of a kinship proceeding, and again, this is most cases, is that someone will die intestate. There's no living relatives that are close enough in line to serve as administrator or no one can be found initially. Perhaps nobody even petitions to be appointed the administrator, and the public administrator, which is, or the treasurer or chief financial or fiscal officer of the county, in certain counties in New York will, I'm sorry, the county treasurer, rather, will become the administrator of the estate. So let's say in New York City, you have the public administrator serving, or in a county outside of New York City, although I believe there's some public administrators in other counties, but let's say you're upstate New York and it's the county treasurer, they might serve as the administrator of an estate for someone who died without a will. At some point they need to account. They need to give the court and the potential people who are entitled to inherit a overview of what they've collected, what they want to distribute, et cetera. And in their accounting they're going to have a list of people they believe to be alleged heirs, the people that they believe are entitled to inherit. Now, later we'll talk about who the burden is on, and it's gonna be on those alleged heirs. It's not gonna be on the public administrator of proving kinship, but they will wanna settle their final account. And so what they'll do is they'll put alleged heirs in their accounting and those alleged heirs who believe that they really are the true heirs of the decedent will file objections and what they'll do is, in their objections, they won't necessarily be objecting to any particular financial issues that they have, although they may. They may say, "Well, you marshaled, you know, $500,000 worth of cash and you sold this real estate for 600,000, but the real estate was really worth 900,000." I mean, they might object to that but really for the most part they're objecting to one primary aspect of the accounting where it says that they are an alleged heir. They want to show the court that they are an heir, that they are entitled to inherit. And that's what a kinship proceeding's for, is they need to prove that they're entitled to inherit from this person's estate, that they are the closest in line, as we'll see later as a statute determines, to inheritance. Another scenario where this happens is a withdrawal proceeding, and we'll talk about withdrawal proceedings in a second, but the basic idea behind a withdrawal proceeding is the public administrator made account. They don't know where or who should get the funds, and perhaps the New York City Department of Finance or the county receives the money, and at a later date, the heirs come forward and say, "Well, actually, we're entitled to that money," and they need to prove kinship to get the money out of the hands of the county or in the city. The second or maybe maybe third scenario is to determine who could serve as administrator of the estate of a decedent. This is the least common scenario, but it's definitely a scenario that comes up. Somebody might say, "Well, I'm closest in line pursuant to statute to be allowed to inherit," but they're so remote that they need to prove that they would be able to inherit and we'll talk about that a little bit more in a later slide. So let's just talk about withdrawal proceedings. The Surrogate's Court Procedure Act says that if a person is entitled to a legacy or a distributive share and they're unknown, the decree must direct the fiduciary to pay the amount thereof to the comptroller of the state for the benefit of the person or persons who may thereafter be entitled thereto. So really funds might be deposited with the state comptroller or New York City, the New York City Commissioner of Finance pursuant to CPRL 2601, the New York City Commissioner of Finance will receive these funds. But the idea is that there has been an accounting and the fiduciary doesn't know who's entitled to inherit. So they've gotta do something with the money to be discharged as fiduciary and to close the estate. And I say that very informally. Those aren't necessarily the proper, you know, legal terms of art you would use but just sort of a basic words, basic language, that's what they're trying to do. They're trying to end things. So what they're gonna do is there'd be a decree on the accounting that says something like what we see here that is ordered, adjudged, and decreed that after payment of the foregoing, pursuant to the court's decision, the administrator shall deposit the balance remaining in the estate with the Commissioner of Finance of the city of New York or the state comptroller to be held for the benefit of the decedent's unknown distributees. So somebody at a later date comes forward and says, "Hey, that money belongs to me. I'm entitled to inherit pursuant to statute." They're gonna need to bring a kinship proceeding. And so who is entitled to inherit when someone dies without a will? Well, that's governed by EPTL section 4-1.1. And this is sort of the be-all end-all because not only do you need to prove kinship, you need to know that even if you did prove kinship, you'd be allowed to inherit. So if you die without a will in New York, and obviously if you don't have payable on death's accounts, if money's gonna be deposited into your estate, you're said to die intestate. And there's an intestacy statute in New York, like there are in either most or all other states that says who inherits if a decedent dies without a will. And so the statute says if there's a spouse and issue, and we'll define an issue, but really that's decedent's descendants. 50,000 and one half of the residue of the estate goes to the spouse and the balance to the issue by representation and we'll talk a little bit about what issue by representation means but for now you can just think descendants, kids, grandkids, great-grandkids, et cetera. So if there's a spouse and no issue, a spouse and no kids, grandkids, et cetera, spouse gets everything. If there are issue, kids, grandkids, and no spouse, everything to the issue by a representation, then if there's none of these people, no kids, no grandkids, no spouse, parents get, right. And if there's none of these people and no parents, and it goes, I'm sorry, if there's no siblings should be beforehand. Nope, siblings are later. So the parents, if there's no grandparent, eventually siblings might get money, et cetera, et cetera, et cetera. And this goes on and on down the line of who will inherit. One thing to know is those of half blood are treated as full blood for purposes of the statute. So if the decedent has half siblings, they're full siblings, okay. And there's obviously, you know, adopted children are real children, so you don't have to think about these things. And some of this is gonna make a little bit more sense as we go forward, why this matters so much. So issue is really means the descendants in any degree, degree of a common ancestor, all right. And representation is a formula of how it goes down the line. I find the statute to be a bit confusing and unclear. Maybe I'm less intelligent than my colleagues, but I don't think it's that straightforward. But I make it easy for myself by creating this little chart. And so I'll explain by representation through an actual example. If you look at this diagram, in the top left corner, we have a little family tree here of a parent, three children, and some grandchildren. Now you'll see in our diagram, left, top left, child 1's deceased. That child had three children, the parent's grandchild. child 2 is deceased. So there's a grandchild 4, but child 3's living. So if you look at what happens to the parent, the bottom right corner, let's say the parent's the decedent, and it goes to issue by representation. Who inherits, parent dies? Well, there's gonna be three initial shares. They're each gonna drop down to child 1, 2, and 3. Well, child 1's predeceased. So child 1, 2, and 3 are gonna get part of that share. Child 2's predeceased. So child 4 is gonna get part of that share, and they're all going to share two thirds equally. Child 3's alive, they get one third share. Child 5 and 6 are out of luck, their parent is alive. That's a joke, they're very lucky. Now, in a kinship proceeding, we are looking at the family tree, both the mother's side and father's side. They are separated. So there's the maternal and paternal parents. So this is a nice family tree from one of the courts. So it's a very good example. If you look at the decedent, you can see how detailed these family trees need to be in a kinship proceeding. Now, this is obviously just an example, but this is basically what you would need to make in a kinship proceeding. You're gonna see all of these people who will need to die, predecease each other to inherit. Let's do a little example of a family tree that you wouldn't necessarily see in a kinship proceeding, but it gives you an idea of how things will work. So let's say this is a kinship proceeding, and although this wouldn't be the family tree we'd use because it's really showing the mom and dad's side. And many of these family members are fairly close in lineage, although not all. So this could be a kinship proceeding, but probably less likely. We're more often than not gonna get a few more cousins in here but again it really depends on the circumstances. But the concept is the same. If we look at this family tree, our decedent here is a single guy, okay, he's a single gentleman. He's one person. And you can see him in bold on the right hand side of the family tree. You can see his mom and dad have predeceased. He has no spouse, no kids, so going down the family tree. Now, if we go back to EPTL, we can see spouse, no issue, the whole to the spouse. Issue and no spouse, the whole to the issue by representation. One or both parents, and the parents get it. But in this scenario, we're at number five. The decedent doesn't have parents, doesn't have spouse, doesn't have issue or a parent that's alive, so it's gonna be whole to the issue of the parents by representation, meaning we're gonna go to the siblings. We start with them. So single guy's mom and dad are predeceased. Sally's sister's predeceased, nothing, all right? No share to her, no share to her estate. Then we go to the second to the left, Sandra's sister's predeceased. Boom, that share, one share goes to Nicole niece, who is alive. Bob the brother's predeceased. Bob the brother had three kids. One is alive, one's predeceased, the next is alive. The living children, all right, they're gonna share part of the share. Gary grand nephew, great grand nephew, they get part of Bob the brother's share. They're all gonna share. Bill brother, on the right to single guy's alive, he gets a share. Sarah's sister's post-deceased. Does she get a share? Or his state does 'cause she died after single guy. What's the difference between our left Sally's sister and our right Sarah's sister? Sally's sister died before the decedent, but Sarah's sister outlived the decedent. So she would've inherited during her lifetime, but she died. So her estate is going to get the share that she was entitled to. And we'll come back to this later, but this is really what a little bit closer to what you're gonna see in the kinship hearing. If we have decedent, we may have claimants, these alleged heirs, also called claimants, on both sides. So let's say, for example, on the maternal side our claimant is first cousin. The decedent had no children, there's no spouse. Mom, deceased. Grandparents, deceased. Great-grandparents, deceased. If we come to the aunt, uncle, deceased, but the closest in lineage we're gonna see is the first cousin. And so that's the person who needs to show that all of these people who would be entitled to inherit before them are dead. Who are the parties to a kinship proceeding? Well, you've got the alleged heirs, also known as the claimants. These are the people who say they're entitled to inherit, You have the administrator of the estate, that's the fiduciary. It's usually the public administrator or the county treasurer. Doesn't have to be. In most kinship proceedings it will be one of those two. But again, it could be another person. There's gonna be a guardian ad litem. We're gonna talk about them in a minute. And the attorney general. So the alleged heirs and claimants, these are the people who claim they are distributees, distributees is a term of art, pursuant to EPTL Section 4-1.1, distributees meaning the people who are entitled to, excuse me, inherit from a person who dies intestate. Many of these terms are defined either in the EPTL, the estate's powers and trust law or the Surrogate's Court Procedure Act, the SEPA. In an accounting proceeding these people will be the objectants. The burden of proof is on the alleged heirs. They're the ones that need to prove that they are entitled to inherit. More on that later, and, you know, it does seem a bit backwards for most people. Many people sort of have trouble with this. Why should the people who are entitled to inherit be the ones that need to prove it? Why shouldn't the fiduciary of the estate be? It seems counterintuitive to a lot of people, especially clients, but the answer to why, I don't know, it's what the statute says. The public administrator is a government agency in the city of New York and they administer the estates of people who die with without a will and there's no one else eligible or willing to administer the estate. In most counties outside of New York, you'll have the county treasurer or some other agency will be in charge. But if I say public administrator in this presentation, I'm talking about the county treasurer. So this statute gives a little bit of an overview of the county or the public administrator's responsibilities. So when would the public administrator or county treasurer get involved? You know, the person who's entitled to the administrator of the estate, all right, is governed by SEPA section 1001. And there is a very close relationship between this statute and EPTL 4-1.1, the intestacy statute. Depending on your right to inheritance under, and you know, are you next in line, are you first in line, are you last in line? That's gonna have a big determination in many ways on whether you have authority over others to serve as the administrator. So SEPA 1001 says that letters of administration must be granted to the persons who are distributees of an intestate and who are eligible and qualify in the following order. And if you go down the statute you'll see what the order is. But for purposes of this slide, I'm giving you a couple snippets. You know, it's the same, basically as EPTL 4, it's the spouse and issue. If there's no spouse and there's issue, you know, and there's kids, then the kids get to do it. But if we get far enough down the line, if the distributees are issue of grandparents, other than aunts or uncles on only one side, then letters of administration shall issue to the public administrator or chief financial officer of the county, usually the county treasurer, but whoever the CFO of the county is. So if you get far enough down SCPA 1001, you're gonna see that if you are too remote, if you're a second cousin or a third cousin, the public administrator has priority over you to serve. So that's when the public administrator gets involved. Guardian ad litem gets involved for a very simple reason. Theoretically, there could be people who, well, there could be people who we don't know exist and are entitled to inherit and they're unknown, it's unknown, we don't know, right? So they're unknown distributees and so their rights need to be represented by someone, right. Somebody needs to be there protecting their interests. So that's why a guardian ad litem is appointed in most of these kinship proceedings. There also might be people whose whereabouts are unknown. We know that this person, if he is alive or she is alive, or they're alive is if they're alive are entitled to inherit but we don't know where they are. We don't know if they're alive. The guardian ad litem is going to represent their interests, and represent their interests, I mean, informally, right. So you can see the correct terminology is in the statute is if there's a person under disability and an unknown, a person who's unknown or whose whereabouts are unknown is a person under disability for purposes of the Surrogate Court Procedure Act. That's the definition. And they do not appear by a guardian, committee, or conservator. They shall appear by a guardian ad litem appointed by the court whenever such person is a necessary party and the court deems it necessary to protect their interests of such party. So I say represents the person, but that's very informal. The guardian ad litem's job is to protect the interests of the party. The guardian ad litem is going to be an attorney. You have to be an attorney to be a guardian ad litem, but you're not necessarily just acting as an attorney. You are acting as an advocate of their interests, but you're also acting as somewhat of objective reporter to the court about jurisdiction and some other matters. The scope and responsibilities of a guardian ad litem, a completely separate presentation, but for these purposes we know. The guardian ad litem's there to protect the interest of anyone whose whereabouts are unknown or unknown distributees. Now, generally, there's gonna be a guardian ad litem. The SEPA says in certain circumstances a person under disability does not need a GaL whenever the public administrator receives processor notice on behalf of the person under disability. It's not gonna really be applicable in most kinship hearings. GaL's gonna be necessary because usually the public administrator's already the fiduciary of the estate. And I've never seen in a situation where there's no GaL, but I would think, theoretically, you wouldn't need one if the PA is notified but they're not the fiduciary. But that's probably more of an advanced presentation. Why is the attorney general involved? They're a statutory party. The process has to always issue to an attorney general where persons are unknown. So that's just a statutory requirement. Every case where it appears that there is no distributee or beneficiary or is not known whether or not there be such, process shall issue to the attorney general of the state. And that's not just kinship proceeding, that's any proceeding in surrogate's court. So let's talk a little bit about procedure. So most kinship proceedings in New York City are overseen by an attorney referee, although you can have a judge oversee the proceeding itself. And what I mean is really not just the whole proceeding, but the hearing. The hearing can be overseen by a referee. And the kinship proceeding will conclude in a hearing. There will be a hearing, which is just in a very small trial, basically. So all the rules of evidence that you would see in a trial are going to apply in a kinship proceeding, but there's usually gonna be a preliminary conference in scheduling order early on in the case. There'll be a note of issue date. There's usually gonna be a date that the family tree must be filed by in the scheduling order. There'll be discovery deadlines in the scheduling order or discovery might be waived. But it's gonna be kind of like any normal litigation or any other proceeding in surrogate's court or even Supreme Court for that matter. These people will come forward, objections will be filed, and the court will schedule with all the parties a preliminary conference to go over the case, to understand the facts, to talk about who's gonna oversee this case. Is it gonna be a referee who's gonna oversee the hearing or is it gonna be a judge? When do we have to, when's the note of issue date? When do you have to submit your family tree? What the discovery deadlines? And any other, you know, types of procedural arrangements that need to be made. There are strict timelines pursuant to the regulations, the uniform rules for the surrogates court, which are regulations of New York State. In an accounting proceeding proof must be completed by the party who seeks to establish kinship, that's the claimant's alleged heirs, within one year from the date fixed for a hearing by the court or the date of referral. So referral means the date it's referred to a referee. So usually that's gonna be your scheduling order. So if your scheduling order is on January 2nd, 2021, you basically need to establish kinship within a year of that. Little bit different in an administration or withdrawal proceeding. With administration proceedings it's, you know, less rare, it's less common, but it happens. In an administration proceeding proof must be completed by the party who seeks to establish kinship within six months from the date fixed for a hearing by the court, or the date of referral, or the petition shall be dismissed without prejudice. So it's without prejudice. Now, if you look at the first section A, the objection shall be dismissed and the money is deposited pursuant to CPLR 2601 for the benefit of unknown distributees. So I read that to be, it's dismissed. I don't know if it would be with or without prejudice, but it's with prejudice. But you can still go back and do a withdrawal proceeding, but that's a pain, right? You don't wanna have to go through the procedural requirements again. So you do have these strict deadlines you wanna meet. In New York City, so I wanna discuss who hears the case. In New York City I've never experienced a judge overseeing the case or attending the hearing. Usually it's a referee. So usually a referee hears the case. A referee is usually a court attorney or a member of the Law Department, and usually the referee is there to hear and report, which is in contrast to hear and determine. So a hear and report, if we look at the CPLR, you'll see that there's a hear and report, which means the referee oversees the case, hears the case, they report to the judge, and then the judge will likely confirm the report. And then if you don't like the report, you have a certain amount of days, you know, I guess to object to the report. We'll go into a little bit more detail. Hear and determine basically means you're stipulating to a referee to hear it and make the final decision. So usually in kinships, we have a reference to hear and report. And so in any proceeding other than one instituted for probate of a will or there's a constitutional right to a trial by jury and that right is demanded, the court may appoint a referee to report to the court upon the facts or upon a specific question of facts or upon the law and the facts. The report of the referee shall be filed and contain the facts found and the conclusion of law. No exceptions need to be filed to the report. Now, there's no right to a trial by jury in a kinship proceeding. So here you can see SCPA of 506 is gonna kick right in. You don't have to have a judge oversee the hearing. The referee can report to the judge on the facts. The referee can report to the judge on the facts and the law. You can all stipulate to that. The referee's gotta file their report within 30 days after the matter has been finally submitted, unless stipulated by the parties that a transcript of the testimony together with exhibits or copies shall be filed with the report, all right, so in lieu of the referee actually typing out a report to the judge, the parties can just stipulate to have a transcript of the testimony together with the exhibits filed with the report. You know, it's just to save money really is the reason they do this. So the referee, again, if you look at the beginning of three, they have the powers granted by 4201 and shall conduct a reference in the same manner as a court trying an issue without a jury. So this is a hearing, it's a jury trial. Referee can issue subpoenas, administer oaths, direct parties to engage in disclosure. Don't make any mistake about it. This is a litigation, right? It might not be contentious, but it is a proceeding. There's gonna be discovery, there's gonna be proof. You're gonna need witnesses, you're gonna need documents, you're gonna need oral testimony. Referee's got 30 days to file the report. Upon motion of any party on its own initiative the court make it confirm or reject in whole or in part the report of the referee. Now, if you don't like the report, okay, you can make a motion to reject it. If things didn't go your way, you can ask the court to reject the report, right, and unless such a motion is made within 60 days after service of notice of filing the report, it shall be deemed confirmed. Now, the expenses and compensation of the referee is fixed by statute in New York City. The referee's gotta get paid in New York City, usually you have a court attorney or a member of the law department overseeing these cases. I don't practice much outside of New York City, very little. So I'm not sure what the, you know, custom is there. I'd be very interested if there's anybody watching the presentation who is in Ulster County or another county in upstate New York, or if they're in Dutchess County, wherever, you know, I would like to know, are referees over overseeing the cases or judges? What's the custom there? All right, and again, so this is all consent, all right. So you can, again, we can waive the report, all right, have the court decide it on the transcript. This is really a way to save money, I think, because there's gonna be a transcript anyway. And if you look at Matter of Plotkin, it says, "All parties stipulated to waive the report of the referee and to allow the kinship issues to be decided by the court based upon the transcript of the hearing, the documentary evidence, the arguments made by the claimants and the guardian ad litem representing the interests of unknown distributees." You know, it just makes it a little bit easier, I think, in some cases, but again, nothing wrong with the report. Now, let's get into a question that comes up a lot: proving a negative, right? An issue becomes how do you show that somebody doesn't exist, right? I mean, there could always theoretically be another person out there that exists that we don't know about. How do you really close the door on that? Well, there's really two ways. One way is SCPA, triple 2 5, 2225, and sections A and B talk about unknown distributees and distributees whose whereabouts are unknown. So if it is established to the satisfaction of the court that a person who would be a distributee has not been heard from for a period of least three years since the date of the decedent and a diligent search has been made to discover evidence of this person, et cetera, et cetera, the court may make a determination that such person is presumed dead and that they predecease the decedent without issue. So you're closing a class, and we'll talk about closing the classes. You're basically saying the decedent died. You haven't heard from anyone else except for who's before the court for three years. We're gonna make pretend that they have predeceased the decedent without any issue and that clears that up. Section B is very similar, all right. It appears that through a diligent, exhaustive search, existence of distributees, well, I'm sorry, really, these are distributees whose whereabouts are unknown is really what's being referred to in letter A and unknown distributees in letter B. And it's the same thing except letter B, subsection B, talks about diligent and exhaustive efforts, not just diligent search. So they're actually two different burdens, arguably. If you look at some of the laws it's very interesting to see how the courts reconcile this, but you could argue it's two different types of burdens. What's the difference between each of those burdens, right? For somebody whose whereabouts are unknown and somebody who's just unknown. But basically, you can think about it, if you've been gone for three years, we haven't heard from you, we're gonna presume you predeceased. And there's another case here, the estate of Riley, that same spirit, it says that they conclude that the description of the estate or distribution of the estate should not be withheld from the distributees or the, I'm sorry, the claimants, because the remote possibility of finding no support that there may be unknown distributees, right? So you don't have to prove a negative. You just have to meet the burden. Due diligence is gonna be a big part of the guardian ad litem in a kinship proceeding. The PA is also gonna do some due diligence. Guardian ad litem is gonna wanna go out and search, do a diligent search or whatever the statute here says, a diligent search and maybe diligent and exhaustive search, depending on who his wards are; are they just unknowns or distributees whereabouts are unknown, all right. And try to find people who might be related to the decedent. The larger the estate, the more due diligence is gonna be required. Smaller the estate, less due diligence, all right. Now that's just the custom. If there's a $50,000 estate, it does not make sense to have the guardian ad litem go out and do $50,000 worth of of work to try to find people who might be entitled, might be the true heirs, might be distributees. If it's a $6 million estate, yeah, it might make sense for the guardian ad litem to do $50,000 worth of work if we can truly shut the door, right, on there being no one else who's a distributee or a true heir who's not before the court. The PA's gonna need to do some due diligence. And this is really a bit separate because if they're the administrator they need to find out who these alleged distributees are. So they're gonna take reasonable steps under the circumstances, right? And they're gonna go through telephone records, postal codes, et cetera. In practice, the public administrators just gonna have somebody who is a investigator go out and try to find some information. They might go to one of these genealogists websites, they might go through court records and try to find people who appear to be related to the decedent, and then they'll list them in the accounting. Very important, the burden of proof is on the alleged heirs. So in order to establish their rights as the person is entitled to inherit, to be the distributees, the claimants in a kinship proceeding must prove the following, okay? A, or one, the relationship to the decedent. How are they related? Are they a cousin, a niece, a nephew? The absence of any person with a closer degree of consanguinity to the decedent. The number of persons having the same degree of consanguinity, I'm having trouble saying that today, to the decedent or to the common ancestor to which they take and the claimant to alleged to be distributees of the decedent have the burden of proof on each of these elements. And this is important. The quantum of proof required to prove kinship is a fair preponderance of the credible evidence. And Matter of Plotkin is a really great case to review. It gives you a really good overview of this stuff. So burden is on the alleged heirs by a preponderance of the evidence. Does the size of the state change the burden? The answer really is yes. Not just through some case law, but really through my experience. I would say if you go to court with a $50,000 estate, the court attorney referee overseeing this case is gonna go a lot easier on you than if it's a $6 million estate. So you couldn't find a birth certificate for this person. Okay, it seems pretty clear that the persons before us are the heirs. It's not really anything else, right? So $6 million estate, they might say to you, "Look, this is a lot of money that will be distributed. Okay, so you gotta show us more." It really depends. Do you need a genealogist? I think that depends. I think there's a few different factors to weigh. And the two factors are, A, the complexity of the estate, and B, the size of the estate. If you have a very complex estate, you're gonna want a genealogist. If you have a big, complex estate, a genealogist is a no-brainer, okay? If you have a big, simple estate, if you think you can just prove everything, if you've got six credible witnesses lined up and you were able to go to vital records and through the decedent's documents and make your case without a genealogist, you don't need a genealogist, right? If you've got all the certified copies of birth certificates, death certificates, marriage certificates, et cetera, et cetera, et cetera, proving this all, you really might not need one. Does it hurt to get one? Probably not. If it's a small estate and it's complicated, you know, it's getting a little trickier. You know, $50,000 estate, but it's complicated. How much is a genealogist really gonna cost, right? $200,000 estate and it's getting complicated? Might wanna start weighing a genealogist, right? It might might make more sense. It's also gonna depend on, you know, how much does each person inherit, right? If you've got 20 different family members and it seems pretty clear that they're all gonna inherit equally, do they all want to chip in for the genealogists? It really depends from case to case. But to me, I think the more complex the case is, the more need there is for genealogists. The simpler the case is, meaning it's easier to get records, the less necessary. And just think about this example. If you have someone who died overseas, and they were a first generation US citizen, a lot of their family's gonna be overseas, right? A lot of these records might be overseas. You might need a genealogist. If this was a person who was a third generation resident, a Bronx of the Bronx, you know, and their family's been in the Bronx, you might be able to get all this stuff in vital records. You might be able to get certified copies of stuff. You might have lots of family friends who can testify. It's a different story. So in other words, the claimants have the burden of proving and must establish that they are the decedent's closest surviving blood relatives as defined by EPTL 4-1.1. You have to show the court how each person is related to the decedent, that no other person of the same or nearer degree of relationship survived the decedent, and upon proof that there are no heirs other than those before the court, the class of heirs may be closed. And that's important, closing the class. Let's go back to this first. One of these first early slides. We're closing classes. We're eliminating the decedent. Did they have any children? No. Is their mother around? No. Brother, nephew, grandnephew, grandparents, aunt, uncle. Boom, first cousin, if you look at the left hand side, has class to close these classes. How do you close the classes? Well, you're gonna need both oral and documentary proof. If you've got really great oral proof and you don't have any documentary proof, you're out of luck and vice versa, all right? It's well-established over the years the proof that's required. It's not really up for discussion. Evidence of pedigree takes the form of both oral testimony and documentary evidence required to corroborate it. An oral testimony is preferably given by a disinterested person such as a professional genealogist, a family friend who would have no entitlement to inheritance, all right. The the next door neighbor who sometimes came to the parties and the barbecues. Claimants who fail to offer evidence to exclude the possible existence of persons who would have an equal right to share in the estate, fail to establish their rights as distributees. You've gotta close the class. You have to show that there's no one in line before you, nobody in a closer degree of relationship per EPTL 4-1.1 who's entitled to inherit. Law is clear. Oral statements in a kinship proceeding are to be accompanied by documentary proof. Just look at all of the cases. This is no argument here, okay? And we have this pedigree chart. So the evidence is gonna be oral and documentary. Same rules as a trial. This is a hearing, it's a trial. You're gonna want disinterested witnesses. The dead man's statute will often come into play. I'm not gonna go into detail about the dead man's statute, but that will come into play. Maternal and the paternal side, you have to think of those separately. You might wanna look for certified copies of births and death certificates or get them, and those are all prima facie evidence of the facts stated therein. So that's helpful. Apostilles, if some of these certified documents come from overseas, much of the proof might be things you find in the decedent's home. You know, wedding invitations, things like that. Attorney's fees. How do attorney's fees work in these proceedings? Well, for the most part they work the same way as any other surrogate's court proceeding. There's case law that says how do courts, you know, approve attorney's fees. If you're curious about how the public administrator's counsel gets attorney's fees, I would encourage you to read some of these statutes in this case that I've included in the slides because they really give a very good overview of how the counsel to the PA gets paid. So, I mean, I think a lot of people feel that the PA, you know, just it's a windfall for them to do this work for the public administrator, their counsel, and sometimes it is, but it really isn't always, at least in my experience, in my overview, can be hit or miss. I've never been counsel to the PA, but just from my anecdotal, non-scientific observation. So the takeaways here. Really the important thing to know are to understand the burden of proof. Two, oral and documentary evidence is gonna be necessary, both of these. The size of the estate matters, okay? Big estate, you're probably gonna need more proof than a smaller estate. But again, if you got a small estate, treat it like it's a big estate, right? I'm not saying go out and spend thousands and thousands of dollars but I'm saying you're gonna wanna get as much proof as you possibly can. Understand the rules of evidence and how they apply. And close the class. You've gotta make sure the class is closed. To anyone in a closer relationship, the claimant has to show that no one in closer degree is alive or entitled to inherit. All right, thanks so much, I appreciate it. And that concludes our presentation.

Presenter(s)

DRJ
Daniel Reiter, JD
Attorney
Law Firm of Daniel J. Reiter, Esq.

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