The 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.