{Read in 3 Minutes} As a Trusts and Estates attorney, I frequently represent clients in the Surrogate’s Court. When one dies, there are two potential proceedings to appoint a fiduciary of their Estate. When one dies with a Will, there’s a Probate Proceeding, and when one dies without a Will, the Court entertains an Administration Proceeding. I’m writing today to provide some information about the latter proceeding. When one dies without a Will (or, as we say in the law, when they die “intestate”), the Courts will appoint an Administrator of the Estate. The Administrator serves a substantially similar role to an Executor.
However, unlike an Executor named in the Will, our statutes in New York provide that certain next-of-kin have the authority to become the Administrator. This person receives a different type of Letters from the Surrogate’s Court. Executors receive Letters of Testamentary. Administrators receive Letters of Administration.
The first step is to decide who is eligible and entitled to serve as the Administrator. Generally, it starts with the surviving spouse, followed by the adult children (or, if none, the adult grandchildren). If the deceased were not married, the parents or the surviving parent or parents would be eligible, followed by siblings and nieces or nephews. Note that this is a hierarchy. If the person with the top priority wants to serve, the Court will appoint them over anyone else.
Once you’ve identified the person who will serve as the Administrator, the question of their eligibility remains. To be eligible, they must be at least 18 years of age, not suffering from diminished capacity, and a US citizen (or a US permanent resident physically residing within New York State). The Court also has discretion as to whether or not to appoint people who have felony convictions or people who cannot communicate well in the English language. Once we know who will become the Administrator, they file a Petition with the Surrogate’s Court for Letters of Administration.
This is something that the parties may do themselves, or they may choose to retain counsel. If it’s not a complicated Estate (not too many members of the class of next-of-kin; no non-marital children; no parties for whom the Court might appoint a Guardian Ad Litem), many people can, and successfully do this themselves without an attorney particularly if the Estate is not complicated. I always encourage people to look at the forms and if they are comfortable handling it themselves, they are free to do so. If not, an attorney is probably a good idea.
Whether the client decides to use an attorney or not, there is still the matter of paying the filing fees to the Court and electronically filing the Petition. If the process is successful, the Court will issue Letters of Administration to the Administrator, who can then start administering the Estate.
For more information on this topic, please contact me.