{Read in 5 Minutes} As a Trusts and Estates attorney, I routinely represent the interests of people after they die. Sometimes they are beneficiaries or creditors, however, more often than not, I’m representing the Executor or the Administrator of an Estate. I’ve been writing this blog now for many years, and it dawned on me that, while I’ve talked about Administrators quite a bit, it might be helpful for people to have a side-by-side comparison between Executors and Administrators. Largely, you might read this and conclude that the titles are merely a distinction without a difference.
Simply put, the Administrator is the person in charge of an Estate when someone dies intestate (without a Will).
Unlike an Executor, who a client names in their Will, the identity of the Administrator is determined solely upon familial relation. Our statutes in New York provide that the following people have priority to serve as the Administrator in this order:
- Surviving Spouse
- Adult Children
- Adult Grandchildren
- Parents
- Siblings
- Nieces and Nephews
Note that this is a hierarchy, meaning the higher a person is on the list, the more status they have in any potential dispute to become the Administrator. For example: if a person dies survived by a spouse and children from a prior relationship, the surviving spouse has the priority to serve as the Administrator over the children.
What happens if you have multiple people with the same level of priority who disagree over who should serve? For example, maybe someone dies, leaving three adult children who hate each other, and they cannot agree on which of the three of them will serve. In this situation, a Surrogate’s Court proceeding is often necessary and the judge can either 1) choose among them, 2) appoint all three as Co-Administrators, or 3) more likely, appoint a Public Administrator, which is a government appointee/agency that can be an independent party in order to administer the Estate and distribute funds.
When looking at the tasks of the Administrator, they are very similar to those of an Executor. However, there are three noted differences:
1. Because the deceased died without a Will, the Administrator lacks direct instructions from the deceased about their preferences.
For example, the Administrator is put in charge of arranging the disposition of the deceased’s remains (burial, cremation, etc.). However, without a Will, there may not be any written guidance for the Administrator to make this decision unless the deceased prepaid their funeral.
2. The Administrator or the Surrogate’s Court may require that the Administrator post an Administrator’s Bond.
An Administrator’s bond is an insurance policy that protects the beneficiaries and creditors of the Estate in case the Administrator runs away with all of the Estate’s assets. Normally, a Will waives the bonding requirements. However, where there is no Will, there’s no ability to waive the bonds. The next-of-kin can waive it if they choose, however, if they don’t, or if there are significant creditors of the Estate, the Court is likely to require a bond.
3. The law treats real property differently when someone dies without a Will.
When the Court appoints an Executor, the Executor receives Letters Testamentary, and they can sell or distribute the property as the Will directs. However, when someone dies intestate, title to any real property vests automatically in the next-of-kin. Generally, the Administrator doesn’t sell it unless it’s necessary to pay a creditor’s claim or the beneficiaries otherwise request. The Surrogate’s Court routinely places limitations on Letters of Administration against the sale or transfer of property absent prior Court approval. If an Administrator needs to do this, they often need to bring a proceeding to remove the limitations.
One should note that although these are potential drawbacks, they may or may not be a big deal. For example, if the Estate has no real property and the deceased prearranged their funeral, and if the Administrator is the sole member of the next-of-kin, none of these will make any difference whatsoever. Some people believe it is important to write a Will to address these. However, if they are not of concern, the person may not even need a Will.
For more information on this topic, please, contact me.