DECISION Incident to this final accounting in the Estate of Vlastimil Horacek, the Public Administrator requests the determination of the identity of decedent’s distributees. Objections were filed by Miroslav Horacek (Objectant), decedent’s nephew from the Czech Republic and alleged sole distributee. A kinship hearing was held on December 20, 2023 at which Objectant and Objectant’s mother testified. Objectant entered vital records, immigration records, hospitalization records, and estate papers into evidence without objection. The record was left open for the submission of additional documentary evidence. After said submission, the record was closed on May 8, 2024. Decedent died on June 18, 2021, leaving a gross estate valued at approximately $1,168,437.39. It is well established that objectants have the burden of proving kinship (Matter of Gavin, 41 Misc 3d 232 [Sur Ct, Erie County 2013]). Specifically, they must prove by a preponderance of the evidence 1) their relationship to the decedent, 2) the absence of any person with a closer degree of relationship, and 3) the maximum number of persons having the same degree of relationship to the decedent (Matter of Whelan, 93 AD2d 891 [2d Dept 1983]). Particularly when alleging that a decedent is survived by a sole distributee, evidence should consist of oral testimony, preferably by a disinterested person such as a professional genealogist, accompanied by corroborating documentary evidence (Uniform Rules for Surrogate’s Court [22 NYCRR 207.16(c)]; see also Matter of Flavin, 15 Misc 3d 1104[A], 2007 NY Slip Op 50479[U] [Sur Ct, Erie County 2007]). Only upon proof that no heirs other than those before the court exist may a class of heirs be ‘closed’ (Matter of Alao, NYLJ, Mar. 19, 2002 at 18, col 6 [Sur Ct, Kings County 2002]). Nevertheless, when it has been at least three years since a decedent’s death the court may determine that no distributee or prior class exists other than those before the court, provided that the court is satisfied an objectant has diligently and exhaustively searched for other potential distributees or classes (SCPA 2225[b]). Here, the court finds that Objectant establishes that he is the decedent’s nephew, that decedent had no other nieces or nephews, and that decedent was predeceased by his parents and only sibling. However, the court does not find that Objectant has proved the absence of a spouse or of issue for the decedent. Although decedent’s date of death is just over three years ago at this time, the court likewise does not find that Objectant conducted searches sufficiently diligent and exhaustive as to enable him to rely on the presumption afforded by SCPA 2225(b) that decedent left no spouse or issue. Objectant’s mother, the decedent’s former sister-in law, testified that she had not seen or spoken to decedent since 1969, when he left the Czech Republic for New York. Similarly, Objectant was not particularly knowledgeable about the decedent’s life and testified that he had never even met the decedent. Objectant did enter into evidence an affidavit from the decedent’s doorman stating the affiant communicated with the decedent regularly and did not know him to have any spouse or issue, but the affidavit only addresses the last five years of decedent’s life. This leaves a gap from 1969 to 2016, i.e., from the time decedent was 33 years old to the time he was 79 years old, for which there is no information or documented attempts at obtaining information. The record includes no testimony or affidavit from a genealogist, or from any disinterested individual familiar with decedent’s life in New York during the time in question. Therefore, the court finds that Objectant has failed to establish kinship. Accordingly, it is ORDERED that the net estate be deposited with the Commissioner of Finance of the City of New York for the benefit of unknown distributees, and it is further ORDERED that the parties shall settle decree providing for compensation of the guardian ad litem, and it is further ORDERED that the Public Administrator shall supplement her account by affidavit and, as so supplemented, the account is settled. The Clerk of the Court shall serve a copy of this decision, which constitutes the order of the court, to all parties in this proceeding by email at the addresses below. Dated: August 13th, 2024
