Under New York law, when a person dies without a Will, sometimes first cousins CAN inherit, subject to certain special rules.
The most significant rule is that while first cousins can inherit, generally they cannot serve as fiduciary. This job goes to the Public Administrator if the County has one (5 boros, Nassau, Suffolk and Westchester Counties do).
After the Public Administrator is appointed, they do what a fiduciary is supposed to….marshal the assets, pay proper debts and taxes, and then account to the heirs.
When the Public Administrator files an Accounting Proceeding where they believe the closest heirs are first cousins, they list them as “alleged first cousins”. They get served a Citation. Their response should be to file “kinship objections”, essentially saying “I am not alleged, I AM”
Thus begins a kinship proceeding.
During a kinship trial, cousin claimants not only have to prove their relationship, they also have to dis-prove the prior classes. Specifically, they have to prove that the decedent died without a spouse, children, grandchildren, parents, grandparents, siblings, nieces/nephews. It can be challenging to prove the non-existence of classes of people.
However, there are a few sources and techniques we frequently use:
- Testimony – During a kinship trial we need court testimony to lay a foundation for the introduction of documents into evidence. The best testimony often comes from older relatives who can “testify as to the family tree”. Not everyone can do this, and not every family has someone who can do it. But many do. In a cousin case we need someone testify about the decedent’s grandparents and more importantly, the grandparents children (who are the aunts and uncles of the decedent). Testimony and documents about aunts and uncles is crucial in a cousins case because after all, who are cousins? They are children of aunts and uncles!
- Surrogate’s Court records – These are the gold standard for proof in a kinship case. This is because the files contain Affidavits where people swore to familial information. So, if you have an old Surrogate’s Court file for Grandpa, where there are Affidavits naming his children, this is very useful in establishing how many aunts and uncles there were. These files often have other useful peripheral information too. Outside of New York there are similar Courts relating to probate and inheritance. They are always worth looking at in kinship cases.
- Obituaries – The internet has made these much easier to locate and obtain. When trying to prove how many children someone had, or who someone’s relatives were, obits have the goods. That being said, sometimes they get it wrong. Discrepancies in obits can often be explained with testimony. So, obits are useful, but you have to look at them carefully.
- Census records – You can send away for certified Federal (and State) census records. The Federal census is every ten years, and at this time you can get them through 1940. These are very useful in establishing how many children a particular person had. The records are pretty detailed regarding who was living in a particular household, and how they are related. As with obits, sometimes the census records really help, and sometimes they present questions that have to be explained. Like, if in 1920 you have a 3 year old showing as a child in a household, and in 1930 that child is no longer there, what happened? Sometimes there’s a useful explanation….like, he died. But what if the explanation is “the family was poor so he was sent to live with relatives down South, and we lost track of him”? Hopefully you can pick up the trail and account for this person and his/her offspring.
- Military records – these can often be obtained and provide useful family information, particularly about a person’s parents.
- Church records – Very useful for marriages, births and sometimes deaths. Very often in kinship cases we are going back in time and needing to prove family histories from other countries. Very often the local church records are a good source of documents and leads to other documents.
- Cemetery records and tombstones. Yes – I’ve even gone myself and looked, and taken a picture or two to use as evidence.
- Documents themselves – Sometimes documents themselves prove more than what you got them for, and/or provide great leads. For example, death certificates show marital status and also show the relationship of the “informant”. Marriage records list parents. Immigration records list family members and relations. Birth certificates from many places list “number of children born to this mother” (which can either be very helpful or cause a need for some ‘splaining)
The records above are just a few of the more common techniques and sources. But every case presents unique proof issues, and we are always finding new and creative ways to establish kinship.
Next post – Saving the day in kinship cases…SCPA 2225