As noted in previous posts, aunts/uncles/cousins CAN inherit, subject to certain special rules.

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 that we frequently use.  Here are a few:

  1. Testimony – During a kinship trial we generally need court testimony to lay a foundation for the introduction of documents into evidence.  The best testimony often comes from older relatives who can essentially “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 that can 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!
  2. Surrogate’s Court records – These are often the gold standard for proof in a kinship case.  This is because the files contain Affidavits where people have sworn to familial information.  So, if you have an old Surrogate’s Court file for Grandpa, where there are Affidavits stating how many children he had, 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, and they are always worth looking for in a kinship situation.
  3. Obituaries – The internet has made these much easier to search for and obtain.  When you are trying to prove how many children a particular person had, or who someone’s relatives were, obits are often useful.  That being said, sometimes they get it wrong too.  For example, obits sometimes step-children and even foster children are referred to as children.  This can often be explained with testimony.  So, obits are useful, but you have to look at them carefully and be prepared to explain discrepancies.
  4. 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.
  5. Military records – these can often be obtained and provide useful family information, particularly about a person’s parents.
  6. 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.
  7. Cemetery records and tombstones.  Yes – I’ve even gone myself and looked, and taken a picture or two to use as evidence.
  8. 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.

If a person dies without a Will, and the closest relatives are aunts, uncles and first cousins, do they inherit in New York?

The answer is YES, but there are some special rules. Aunts, uncles and cousins can inherit if there is nobody in the prior inheritance classes (spouse, kids, parents, siblings, nieces or nephews).  Here are just a few of the special rules:

  • Usually first cousins are not permitted to serve as Administrators of an Estate. The Public Administrator (in the 5 boros, Nassau, Suffolk and Westchester) generally serves as Administrator in cousin cases.  In the other Counties the tax assessor acts as Administrator.
  • In cousin inheritance cases the Estate is divided into two halves, the maternal and paternal sides.  In a cousin case we must look at the status of aunts/uncles/cousins on the decedent’s mother’s and father’s side of the family.  As an example, if there is one cousin on the father’s side and ten cousins on the mother’s side, the paternal first cousin gets 50% and the ten maternal cousins split 50% ten ways.  Life is hard sometimes.
  • First cousins once removed (children of first cousins) can only inherit if there are no other first cousins on either side of the family.  First cousin once removed cases can be tough.

When the Public Administrator handles an Estate, they do anything and everything that a typical family member Administrator would do. They sometimes arrange burial, they clean out apartments and houses, they search for a Will, they receive mail, they sell houses or apartments, they marshal accounts and assets, they deal with claims of creditors, they file tax returns, and ultimately they try to figure out who is legally entitled to receive the inheritance.

When they reach the point where an Administrator would ordinarily pay the money to the heirs, the Public Administrator will file an “Accounting Proceeding”. Essentially, they set forth for the Court what they have done, detailing all the money taken in and paid out, and ask the Court to approve the way they have handled the money and the claims, and to approve fees for their attorneys.  The final thing the accounting proceeding requests is a determination regarding WHO is entitled to receive the balance of the money. The Public Administrator does a kinship investigation, so they generally list (and notify) the people they believe are the cousins. However, in the Accounting Proceeding they refer to the cousins as “alleged” cousins.

When cousins receive a Citation in an Accounting Proceeding where they are called “alleged” first cousins, they should retain counsel and file Objections with the Court.  Attorneys who do this type of work will generally agree to work on a contingency fee basis.

This is the beginning of a “Kinship Proceeding”.  In a kinship case, the cousins have to prove who they are, and thereby claim and ultimately receive the money. This is not as simple as it seems. Not only do the cousins have to prove who they are, they have to DIS-prove prior inheritance classes AND show how many cousins there actually ARE. The proof in these cases consists of testimony and certified documents.  Typically it is necessary (and certainly helpful) to use a genealogist to prepare a family tree and obtain the necessary documents.

Proving negatives creates some special challenges.  In future posts I will address many of the techniques that are used to prove kinship.

For the people who die and create these cases, or for the friends or family who WOULD have been included IF the decedent had made a Will, these cases are often kind of sad. For people who are notified out of the blue that “your cousin so and so died, and you may have inheritance rights”, not so sad.  In law school they called these “laughing heirs” cases. Law students probably think these never actually happen, but they actually happen pretty often.

Next post – “Proof and Nuance in Kinship Cases”