When is a Family Tree Affidavit Necessary?

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A family tree affidavit is an affidavit executed by a disinterested person to prove who a decedent’s distributees are. To be considered disinterested, the person must have no financial interest in the decedent’s estate. A distributee is a legal heir that would inherit from an estate, by law, if the decedent did not have a will. The family tree affidavit must include how and how long the disinterested person knows the decedent and is familiar with his or her family, the person’s relationship to the decedent, who the decedent’s distributees are, and a statement that there are no other persons of the same or nearer degree of relationship who survived decedent. This affidavit is sworn to under penalty of perjury.

Under NYCRR 207.16, a family tree affidavit is required in New York in the Surrogate’s Court when filing petitions for probate and administration when the decedent was survived by only one distributee or where the relationship of the distributees to the decedent is grandparents, aunts, uncles, or first cousins. When the distributees are of this degree the family tree affidavit must include the maternal and paternal sides of the family. If there is only one distributee, the affidavit cannot be given by the spouse or children of the sole distributee.

Family tree affidavits, also known as heirship affidavits, are also used to transfer title to real property when the distributees have not filed a probate or administration proceeding to appoint a fiduciary for the estate. Each distributee would need to participate in the transfer and the title company would want an heirship affidavit executed by a disinterested third party in the same manner the Surrogate’s Court would require. This method of transfer can only be used when all distributees are of full age and capacity.  This method of transfer poses the most risk for a title company because the affidavit, while notarized and sworn to under the penalty of perjury, is not supported by a Decree from the Surrogate’s Court in a proceeding determining the distributees of the decedent. Most title companies will not allow this method of transfer to be used unless the decedent died more than two years before and the distributees are easily ascertainable. The rationale is that if there were other distributees to the estate with an interest in the property, they would have come forward to claim an interest in the property within two years.

A family tree affidavit has specific requirements in order to be accepted by the Surrogate’s Court and/or a title company. It is best to consult with an attorney experienced with estate administration matters when trying to use a family tree affidavit.

Burner Law Group, P.C.

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