Unless a decedent dies leaving a valid will, New York State provides a default scheme for distribution of an estate to the closest blood relatives (“distributees”) in a certain hierarchy. If no distributees petition to administer the estate, or if the identity of all of the distrributees cannot be completely ascertained, a kinship proceeding is necessary before one or more persons claiming to be distributees are entitled to take their share of the estate. The distributee has the burden to prove the proper “class” of distributees, and the identity of each person in that class for purposes of determining the distributee’s fraction of the estate. Often, a genealogist is required to testify to satisfy the court that (1) the proper resources were searched to find any distributees that may exist (based on factors such as the size of the estate, age of the decedent and any known relatives, availability of witnesses, or decedent’s country of origin) and (2) that the search of those resources was done thoroughly. Especially when a decedent is originally from abroad, the work required to meet that burden of proof can be substantial. A special rule allows the judge to presume that no other distributees exist if “diligent and exhaustive efforts” are made to find them and more than three years have elapsed since the decedent died.
We handle two types of proceedings in Surrogate’s Court related to these matters: objections in an accounting proceeding (filed before administration of the estate is complete) and a petition to withdraw funds (filed after the estate is settled and the funds have already been turned over to the City or State Unclaimed Funds division to be held for a future claimant).