When a person dies without a Last Will he is said to have died intestate. In these types of estates, an application or petition needs to be filed with the Court for the issuance of Letters of Administration.
Surrogate’s Court Procedure Act (SCPA) Section 1001 entitled “Order of priority for granting letters of administration”, lists the persons who have the right to be appointed as the estate administrator. The decedent’s surviving spouse has the initial right of appointment followed by the decedent’s children.Notwithstanding, the statutory designation of priority, Objections to the appointment of such designated individual can be filed with the Surrogate’s Court. SCPA 707 entitled “Eligibility to receive letters”, sets forth a number of grounds which would disqualify a person from receiving a fiduciary appointment. For example, the statute indicates that a “felon” or a person subject to “substance abuse” or “dishonesty” may be disqualified to serve. The New York Probate Lawyer Blog has published a number of earlier posts discussing estate litigation regarding fiduciary appointments.
Generally, it is difficult to have the Court disqualify a person who otherwise has the prior right to act as the executor or administrator of an estate. The assertions that may be advanced by an Objectant must be specific and have both a factual and legal basis. Animosity or personal grievances between a potential fiduciary and estate beneficiaries are typically insufficient to prevent the appointment of someone who has the priority right to serve as fiduciary.
A recent case decided by Nassau County Surrogate Margaret Reilly on May 31, 2017 entitled Estate of Rafic provides an example of some of the issues in a contested fiduciary appointment case. In Rafic, a decedent died intestate and was survived by a spouse and two children. The surviving spouse petitioned the Court to be appointed as Administrator. The two children then filed Objections to the appointment. The Court refused to grant an Order on behalf of the children to subpoena records that allegedly showed that the spouse constructively abandoned the decedent or was disqualified due to substance abuse. The Court found that there was no legal basis to assert a disqualification for constructive abandonment. Also, the Court stated that any records of substance abuse which may have occurred a number of years prior to the decedent’s death would not demonstrate disqualification at the present time.
I have represented many individuals in connection with Surrogate’s Court litigation and the disqualification of an executor or administrator. Call me now if you have a question or issue concerning these matters.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Manhattan and Queens. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.