Where There is No Will, Kin Controls. But, Who is Your Kin?

The importance of having a last will and testament or a testamentary substitute has been repeatedly stated here and elsewhere. Failure to set up your own estate plan leaves the control of your estate to the default rules of the state specific intestacy statute. In some situations, the end result may not be horrible. For families with an uncomplicated family lineage, the pattern of inheritance will not likely stray from what most people put in place in a will. But, with more complicated families with children of multiple marriages, children born outside of marriage or the closest relatives being persons other than spouses and children, the path to completing an estate administration becomes much more complicated.


Under the intestacy statute, children born of a marriage and those born outside a marriage are not treated the same. Marital children will automatically be considered heirs of a deceased individual.   On the other hand, children born outside of a marriage (now called “non-marital” children under the New York Estates Powers & Trusts Law) and their rights of inheritance will depend on whether the deceased parent is a mother or father.   Non-marital children of a mother, like marital children, automatically inherit from their mothers.

This is not the case with inheritance from a child’s father.   To inherit from a non-marital father, a child must prove one or more of the following: that paternity was established by an Order of Filiation; the mother and father filed an acknowledgment of paternity; the father signed another document acknowledging paternity; or paternity is established by “clear and convincing evidence”. “Clear and convincing evidence” can include genetic information or evidence that the father “openly and notoriously” acknowledged the child as his own.   The latter can be proven by a variety acts taken by the father and shown in an affidavit of an uninterested party.

It should be noted that the above applies only to biological and adopted children; foster children and stepchildren are not considered children for purposes of intestate inheritance.

More Distant Relatives

In some intestate estates, neither a spouse nor children are living or exist. The estate of such decedents would then pass to the closest class of relatives still living.   New York intestacy law considers, in order, grandchildren, great grandchildren, parents, siblings, uncles and aunts, nieces and nephews, grandparents, 1st cousins and 1st cousins once removed as possible relative classes that can inherit an intestate estate.

Once the closest class of relatives is established, the claiming relative(s) must prove their relationship to the decedent by common blood relative. A family tree showing that either all higher classes of relatives are deceased or do not exist must be created and evidence such as birth, death and marriage records must be presented. Beyond proving kinship, a claiming relative must show that no other relatives exist of a higher or equal level of relationship. If there is a dispute as to who is and who is entitled to inherit, the court may order a kinship hearing.

In a probate proceeding (an estate administration proceeding where a will is submitted to the court), most of these steps are unnecessary. Sufficient notification of all distributees (persons who would inherit property under intestacy) and those listed in the decedent’s will shall suffice the court.   The less complex nature of a probate proceeding to an intestate proceeding provides an additional benefit to preparing an estate plan rather than leaving your estate to the complexities of intestacy.

Please contact info@levyestatelaw.com for more information.


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