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shutterstock_571088005-300x200The establishment of an estate requires a determination as to whether a decedent died with or without a Last Will and Testament.  If a Will exists the probate process follows a particular course in the Surrogate’s Court.  However, if there is no Will, then the procedures and rules regarding intestate administration must be followed.  The appointment of an estate Executor or Administrator is necessary so that estate settlement can take place.  The New York Probate Lawyer Blog has published many articles regarding probate and the administration of intestate estates.

When there is no Will, the first point of reference is Estates, Powers and Trusts Laws section 4-1.1 entitled “Descent and distribution of decedent’s estate”.  This statute, which this Blog has discussed on many occasions, provides for the priority order of a decedent’s heirs who are entitled to inherit the estate.  On examination, such list of heirs may seem simple to determine.  However, in many estates, the determination of heirship or kinship can be complicated.  Kinship hearings and other forms of estate litigation may be involved.  A recent Manhattan Surrogate’s Court case entitled “Estate of David Lee Faulkner” decided by Manhattan Surrogate Rita Mella on July 24, 2025 provides an example of various intestate issues affecting the appointment of an estate administrator.

In Faulkner the Court had received three separate petitions for Letters of Administration.  Since the decedent was not survived by a spouse, it was necessary to determine the identity of the decedent’s children.  Two of the applicants were non-marital children.  As a result, these individuals needed to satisfy EPTL section 4-1.2 entitled “Inheritance by non-marital children”.  In Faulkner a hearing was held and these individuals were able to prove by clear and convincing evidence that the decedent had openly and notoriously acknowledged that they were his children.

shutterstock_96626974-300x225There are many different types of assets which may be a part of a New York estate.  When a person dies he may leave a Last Will and Testament.  In such event the Will needs to go through the probate process.  This means that the Will is filed with the local Surrogate’s Court along with a Petition for Probate and additional documents.  If there is no Will, then Letters of Administration need to be issued to the statutory person entitled to receive them.  This is typically a decedent’s next of kin.

The New York Probate Lawyer Blog has published many articles concerning Probate and Intestate Administration.  Estate assets come under the authority of the estate fiduciary which is either an Executor or an Administrator.  Among the various assets the estate may have control over, are a decedent’s cooperative apartment or condominium apartment.  Each of these properties present unique issues and problems which an estate fiduciary may need to resolve.

A cooperative apartment is not considered to be real estate.  The interest is the ownership of shares in a cooperative corporation.  There is also a proprietary lease which allows the shareholder to occupy the unit.  The issues that arise with a co-op relate primarily to the fact that any sale of the apartment must be approved by the cooperative management.  Not only must the co-op approve the purchaser, it must also certify that the estate administrator or executor provides proper authenticated documents showing the power to transfer the owner’s interests.  These documents may include updated certificates from the Surrogate’s Court, various affidavits of ownership and no estate debts and an estate tax Release of Lien which must be obtained from the NYS Department of Taxation and Finance and sometimes the IRS.  Also, the original stock and lease must be located and turned over to the management.  This may present a problem if these documents cannot be found among a decedent’s personal papers.  It may be necessary to obtain special title insurance to ensure against any misappropriation of these papers.

shutterstock_204507106-300x254There are numerous marital rights and issues which may arise in Estate and Trust cases in New York.  These matters span a broad range of topics which include probate proceedings and intestate administration proceedings.  The New York Probate Lawyer Blog has published many articles concerning spousal matters.  This blog will discuss facts relating to some of these matters.

Probate Proceedings: The probate of a Last Will and Testament in Surrogate’s Court directly affects the interests of a surviving spouse in a number of ways.  To begin with, probate cases require that official notice be given to a decedent’s next of kin which includes a living husband or wife.  As an essential party of interest, the spouse would generally have the right to contest a Will if he or she would benefit monetarily.  Not only might there be a Will Contest, a surviving spouse is afforded a spousal right of election pursuant to Estates, Powers and Trusts Law section 5-1.1-A entitled “Right of election by surviving spouse”. This estate statute allows the wife or husband to elect to receive the benefits under a Will or receive a statutory share essentially equal to one-third of a decedent’s net estate.  The calculation of an elective share can be quite complicated since it includes assets which are transferred outside of the probate estate like joint assets which are referred to as testamentary substitutes.  The statute provides a formal procedure whereby a Notice of Right of Election is filed with the Surrogate’s Court and a copy is sent to an estate Executor or Administrator.  While there is no legal requirement to give a spouse any bequest in a Will, the Right of Election provides protection so that a spouse cannot be entirely disinherited.  If a third-party is named as a beneficiary on separate assets such as a NYCERS retirement account, a spouse may have a right to receive a share of such asset.

Intestate Administration Proceedings: Where a decedent dies without a Will, a spouse would also have a Right of Election to receive a share of a decedent’s estate.  This right is separate from a surviving spouse’s right to receive an intestate estate share.  Sometimes the intestate estate does not include assets such as joint accounts and other assets which pass directly to named beneficiaries.  The spouse can claim a portion of these items.

accounting3-300x163There are many different aspects to the settlement of a New York estate.  The initial stages of handling an estate involves the process of either probating a Last Will and Testament or obtaining the appointment of an estate administrator in the case of intestacy.  Each of these proceedings, whether it may be probate or intestacy, can be complicated and lengthy in process. For example, a probate case in Surrogate’s Court may be delayed due to a Will Contest. As to an intestate administration, this type of matter can be burdened with the need for a kinship hearing or a dispute among heirs as to whom should be appointed as the estate administrator.

Once an Executor or Administrator is appointed for an estate, the fiduciary has an obligation to determine and collect estate assets and to resolve all issues which might affect the decedent’s estate.  These issues may involve disputes or litigation with creditors or the sale of assets such as real estate or a cooperative apartment.  There may be ongoing expenses due to loans or mortgages and even foreclosure proceedings.

Throughout all the steps a fiduciary must engage in, he owes a fiduciary duty to the beneficiaries to act properly and protect the estate’s interest.  All of a fiduciary’s actions are subject to review and approval.  This approval process is completed by a fiduciary through preparing an Accounting of his acts.  A fiduciary accounting is a document which reflects in various Schedules a financial picture of the estate.  The New York Probate Lawyer Blog has previously published many articles concerning accountings and also estate settlement including probate and intestate administration.

Estate-Planning-Blocks-300x200In an earlier blog-post on April 25, 2025 in the New York Probate Lawyer Blog, the role of a Public Administrator was examined. As discussed in the post, the Public Administrator is a government agency in New York City. Each New York City County has a different Administrator whose role is to handle estates of decedent’s primarily where there is no other person available or qualified to do so. This situation arises most commonly where an individual dies without any known next of kin or the only known heirs are cousins or more distant relatives.

There are many additional situations in estate matters in the New York Surrogate’s Court where the appointment of a Public Administrator may occur. Another likely situation is where estate litigation is pending and various parties cannot agree to the appointment of an estate fiduciary. Similarly, it may appear in a particular case that a person who was otherwise a possible appointee cannot or should not serve as an Executor or Administrator due to a conflict or other disqualifying factor. Also, in some estates the Court may require that the appropriate fiduciary file with the Court a Surety bond as security for his appointment. If the individual is unable to qualify for a bond due to poor financial credit or some other reason, it may be necessary to have a Public Administrator act as Administrator or Executor since the public official does not need to be bonded.

Recently, there have been a number of Surrogate’s Court cases where the Court has resorted to the appointment of a Public Administrator to facilitate estate settlement. In a Manhattan estate case entitled Will of Magdalini Jacobs, decided by Manhattan Surrogate Hilary Gingold on May 29, 2025, the Court appointed the Public Administrator of New York County to administer a decedent’s estate. In Jacobs, the decedent was survived by two daughters one of whom petitioned the Court to be appointed as Administrator c.t.a. The non-petitioning daughter objected to her sister’s appointment and questioned certain post-death actions by the Petitioner. At a Court conference, neither party would consent to the appointment of the other and alleged that the other party was unfit to act as a fiduciary. In view of this circumstance, the Court appointed the Public Administrator as Temporary Administrator in the interest of justice.

shutterstock_204507106-300x254As a New York Probate and Guardianship attorney there are many instances where the relationship between third-parties and a Decedent or Incapacitated Person raise cause for concern. The effects of elder abuse or undue influence can disrupt or obliterate what might have been an entirely different disposition of a person’s assets.

The New York Guardian statutes contained in Article 81 of the Mental Hygiene Law make provision for the appointment of a Guardian for a person’s personal needs and property management. The essential element of the statute is appointing a Guardian for someone who is incapacitated. Mental Hygiene Law §81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” provides that incapacity requires a determination that someone is likely to suffer harm because they cannot provide for their needs and are unable to appreciate and understand their disability. In many instances Guardianship proceedings are commenced due to various cognitive and other mental or physical issues which drastically inhibit a person’s ability to function. It is under these circumstances that third parties may take advantage of a person’s vulnerability.

It is not uncommon to find that an incapacitated person’s finances have been manipulated or appropriated. Ownership papers such as deeds and financial accounts may be wrongfully transferred or names added providing for easy access to an unwanted person. Fortunately, the Guardianship laws contain provisions whereby a Guardianship Court can undue this type of damage. Proceedings can be brought in the Court to force a wrongdoer to return or turn over wrongfully obtained assets. Mental Hygiene Law §81.29 allows the Court to revoke a power of attorney, a health care proxy, a contract or conveyance which the Court finds was made during incapacity. However, notwithstanding this broad power, the Guardianship Court cannot revoke a Last Will and Testament. If a Last Will was executed at a time when a person may have been improperly influenced or lacking capacity, the challenge to the document would have to take place after death in the Surrogate’s Court.

Estate-Settlement-300x200The starting point of an estate is the appointment of an estate fiduciary. When a decedent leaves a Last Will and Testament, the Will must be admitted to probate in order for its terms to become effective. The Court typically appoints the Executor who has been nominated in the Will. Letters Testamentary are then issued. The New York Probate Lawyer Blog has published numerous articles concerning probate and estate settlement.

If a decedent does not leave a Will the Court appoints an estate Administrator. The persons who qualify for appointment are usually the decedent’s next of kin. Surrogate’s Court Procedure Act Section 1001 entitled Order of priority for granting letters of administration” contains the provisions regarding the appointment of estate administrators.

After an Executor or Administrator is appointed, the fiduciary takes on the responsibility of settling the estate. The decedent’s assets must be identified and collected. Unpaid bills, debts and claims need to be reviewed and contested or satisfied. Various assets such as real estate may need to be sold.

shutterstock_96626983-300x300After the death of an individual, it may be necessary to administer a decedent’s estate. This is essential when a person dies leaving assets such as financial accounts or real estate owned in the person’s name. In cases where a decedent’s assets are held in his name along with another person, such as joint bank accounts or with named beneficiaries, administration may not be needed. This is because such assets pass to the joint owner or beneficiary automatically by operation of law. As an example, if a person dies and leaves a 401K financial account with a relative named as beneficiary, then this asset will be paid directly to the named beneficiary without estate administration. The New York Probate Lawyer Blog contains many articles discussing estate settlement.

When assets are held in a decedent’s name alone, these items need to be distributed in a certain manner. If there is a Last Will and Testament, the Will must be probated and the terms of the Will followed for asset distribution. If a person dies intestate, without a Will, then his estate is distributed according to the laws of intestacy. The decedent’s distributees (heirs) are entitled to receive the estate amounts. Typically, the person in charge of handling the affairs of an estate is an executor under a Will or a family member who qualifies to act as an estate administrator according to the intestacy provisions in the Surrogate’s Court Procedure Act.

In cases where there is no available or appropriate person to be appointed to control estate affairs the Court might appoint a Public Administrator. The office of a Public Administrator in New York City is a government agency. The Public Administrator in each County has responsibility for handling the estates of decedent’s where there is no one else qualified to do so. Attorneys who represent the Pubic Administrator handle the Surrogate’s Court proceedings.

Probate-2-1-300x200The New York Probate Lawyer Blog has published many articles concerning New York trusts and estates and the settlement of probate and intestate estates. When a person dies, a determination needs to be made as to whether he left a Last Will and Testament. If so, it is important to see whether the Will document is an original or a copy. This is because it is extremely difficult to probate a copy of a Will.

Surrogate’s Court Procedure Act (SCPA) section 1407 entitled “Proof of lost or destroyed will”, sets forth the requirements to prove a Will where the original cannot be located. The prevailing rule in New York is that if the original of a Will was known to be in the possession of a decedent at the time of death and the original cannot be found, there is a presumption that the Will was revoked by the decedent.

Assuming that an original Will is located, the document must be filed with the Surrogate’s Court for probate. The probate process in New York includes the filing of a Petition for Probate. The petition contains information regarding the names and addresses of a decedent’s next of kin (“distributees”), information regarding the Will provisions and also the value of the probate estate.

Estate-Administration-300x200The appointment of an Executor or Administrator to represent a New York estate may, at first, seem rather simple. If a person dies without a Last Will and Testament the estate is inherited by the decedent’s next of kin, known as distributees. Pursuant to Estates, Powers and Trusts Law section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, the persons who inherit are listed in the order of their kinship to the decedent, i.e. spouse, then children and so on.

Concomitant to this statute is Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting Letters of Administration”, which gives the same priority to heirs to be appointed as a decedent’s intestate estate Administrator. Problems arise regarding the actual appointment for numerous reasons. The New York Probate Lawyer Blog has published many articles concerning the appointment of New York estate fiduciaries. One major area of contention arises when there are multiple individuals who have an equal priority right to appointment who are competing against each other and contesting the other persons appointment. This circumstance often arises when a decedent’s children or brothers and sisters are seeking appointment. The Surrogate’s Court typically is called upon to resolve or rule on such disputes.

In a situation where a person dies leaving a Will, the document typically contains a provision nominating an Executor and usually one or more successor Executors. When this occurs, the nominated fiduciary has the priority to seek appointment as Executor.

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