New York Probate Lawyer Blog

The appointment of a fiduciary in New York can take many forms.  When a person dies and leaves a Last Will and Testament the document typically designates the appointment of an Executor.  After a Will is admitted to probate, Letters Testamentary are issued to the Executor.  If a decedent does not have a Will and dies intestate, then an Administrator is appointed after the conclusion of proceedings for Letters of Administration.  As to trustees, there are different types of trustees.  A testamentary trustee is appointed to oversee a trust which is created in a Will.  A trustee of an inter vivos trust is responsible for a trust created outside of a Will such as a revocable or living trust.

In all instances, fiduciaries such as Trustees, Executors and Administrators must act properly and uphold their fiduciary duties.  They have certain powers and authority which is granted by the document and also by New York estate and trust statutes.  Estates, Powers and Trusts Law section 11-1.1 entitled “Fiduciaries’ powers” provides many of the powers which can be executed.  Fiduciaries generally owe various duties which prevent conduct such as self-dealing or using funds for personal reasons.  When a fiduciary acts improperly they can be found to have breached their fiduciary duty.  Such a breach can result in a fiduciary being suspended or removed and also personally liable for any transgression.

One of the primary statutory provisions concerning misconduct by an Administrator, Trustee or Executor is Surrogate’s Court Procedure Act section 711 entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct”.  This statute lists 11 categories of conduct or situations in which suspension or revocation may occur.  Typically, a person interested in an estate or trust would file a petition with the Court seeking the appropriate relief.  The petition should be as specific as possible when describing the conduct or reasons whereby the Court should take appropriate action.

There 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.

There 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.

In 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.

The 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.

After 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.