Intestate Estate

July 31, 2024

The Surrogate’s Court Will Act in the Best Interests of an Estate to Appoint Administrators

One of the primary reasons for implementing an estate plan is to afford a person the opportunity to select or nominate estate fiduciaries. When one thinks about planning an estate, the initial considerations regarding the creation of a Last Will and Testament or a Revocable Trust are the beneficial provisions concerning the disposition of assets. Of course, while selecting beneficiaries and alternate beneficiaries, as well as the assets or shares they are to receive, is a prominent aspect of any plan; it is also essential that sufficient consideration be given to the selection of fiduciaries. Fiduciaries may be executors, trustees or guardians for minors.

The nomination of a fiduciary is important since the creator of the document is placing his trust in a named person or persons to administer an estate or trust and to put into effect the creator’s intentions. Executors and trustees may need to serve for long periods of time and may need to confront and resolve many complex issues affecting an estate or trust ranging from taxes, creditors’ claims, and other sorts of litigation.

When a decedent does not leave a Will, the selection of an intestate estate administrator is left to the determination of the Surrogate’s Court by application of the estate laws. In particular, Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration” provides a list of persons who have priority in being appointed as the estate administrator. The New York Probate Lawyer Blog has published numerous articles concerning the appointment of estate administrators and estate settlement.

March 14, 2024

The Appointment of an Estate Administrator Can Be Contentious

by Jules M. Haas

Estate planning in New York presents many benefits for settling an estate. The foundation for any plan is a Last Will and Testament. This document allows a person to memorialize in writing his intentions and desires regarding the disposition of estate assets. Provisions can be made for bequests of specific property to individuals and various shares of an estate can be allocated among family and friends. In effect, a Will allows for a written enforceable declaration by a testator regarding distribution of assets.

Although a Will needs to be filed with the Surrogate’s Court and be admitted to probate, in most instances the probate process is not complicated by Will contests or other types of estate litigation. The New York Probate Lawyer Blog has published many articles concerning estate planning, probate and estate settlement.

Another important advantage of preparing a Will is the designation of an executor. The Surrogate’s Court routinely accepts a testator’s nomination unless specific wrongdoing or other impropriety is shown by an objectant. A nominated executor can be a family member or a friend or a professional advisor. Generally, only non-resident aliens are excluded.

June 16, 2020

Who Should Act as the Estate Administrator and Why Does it Matter?

by Jules M. Haas

Estate planning in New York is important because it allows a person to create planning documents such as a Last Will and Living Trust. Advance directives in the form of a Power of Attorney and Health Care Proxy can also be made. While these papers reflect a person’s intentions regarding the disposition of assets and personal care, they also allow the selection of fiduciaries, such as Executors, Trustees and Agents.

In situations where a Last Will is not in place, a person dies intestate. As discussed in numerous posts in the New York Probate Lawyer Blog, an intestate decedent’s estate is distributed to his next of kin called distributees. While the determination of kinship may sometimes be complicated and require the services of genealogists, the selection of the estate Administrator may be equally challenging and contentious.

Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration,” sets forth the right of priority of persons to receive appointment as an administrator of an intestate estate. As can be expected, a spouse has priority, then children, and then more distant relatives. Invariably, problems arise when there are multiple candidates occupying a priority class such as children or brothers and sisters.

December 4, 2019

New York Estate Planning for the Small Business Owner – Some Important Points

by Jules M. Haas

Estate planning in New York is an important consideration for all individuals. When a person dies, assets are disposed of according to the laws in New York. If property passes upon death by operation of law then named beneficiaries or joint owners become the owners. Where assets are held in the sole name of the decedent with no beneficiary and there is no Last Will and Testament, the intestate estate is distributable to a decedent’s next of kin. However, the distribution of these same assets owned solely with no beneficiary can be controlled by the terms of a Will. The New York Probate Lawyer Blog has discussed estate planning in many articles.

In the case of a small business owner, particular care and examination must be made as to the consequences of the death of the owner.

To begin with the business owner must assess the nature of the business assets. Is the ownership interest in the form of stock or shares held in a corporation or a membership interest in a limited liability corporation? Perhaps the owner is a partner in a partnership or possibly, there is no actual business entity.

September 18, 2019

Important Information Concerning The Appointment Of An Estate Administrator

by Jules M. Haas

When a person dies without a Last Will and Testament he is known to have died intestate. In these cases the person’s distributees or next of kin have the statutory right to inherit the estate assets. Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides the list of individuals who are entitled to inherit the estate. The New York Probate Lawyer Blog contains numerous articles discussing intestate estates.

Before the estate can be settled an administrator of the estate must be appointed. Surrogate’s Court Procedure Act (SCPA) section 1001. entitled “Order of priority for granting letters of administration” designates the distributees who have the priority to be appointed as estate Administrator. Essentially, the priority under SCPA 1001 follows the inheritance rights under

EPTL 4-1.1.

September 4, 2019

Important Considerations Regarding The Appointment of A New York Administrator

by Jules M. Haas

When a person creates an estate plan he typically prepares a Last Will and Testament. A Will contains a provision that nominates an Executor. Thus, in most probate proceedings the selection of the estate fiduciary is not complicated and is controlled by the appointment made by a testator in a Will.

This situation is much different when a person dies intestate – without a Will. In these cases where the Court is required to appoint an estate Administrator, direction must be obtained from Surrogate’s Court Procedure Act (SCPA) section 1001 entitled “Order of priority for granting letters of administration”.

Pursuant to this statute, the persons entitled to be appointed as Administrator are given priority based upon family relationship. A spouse of the decedent has first priority, followed by children, grandchildren and then father and mother, brothers and sisters. A frequent issue that arises in these cases is that there may be multiple individuals in a category who want to act as Administrator and who disapprove of the other applicants. Since each of these persons has an equal statutory right to be appointed, it is often up to the Court to make a determination as to the appropriate appointee. This may lead to Estate Litigation in the Surrogate’s Court.

June 28, 2017

New York Letters of Administration May be Contested

by Jules M. Haas

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. Continue reading

May 25, 2016

New York Administration Proceedings Require Notice to All Heirs

by Jules M. Haas

When a person dies without a Last Will he is said to have died intestate. The Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL) have numerous provisions that control intestate proceedings. These provisions have been discussed in a number of earlier posts in the New York Probate Lawyer Blog.

For example, EPTL Section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, sets forth the persons who have a right to receive a share of the intestate estate. As expected, a spouse and children have the primary right to share the estate. If there is no surviving spouse or child, then the next individuals in line to inherit are the decedent’s parents and, if none, to brothers and sisters. The statute then continues to provide for more remote heirs. Continue reading

October 21, 2015

New York Letters of Administration May Be Amended to Collect Assets

by Jules M. Haas

When a person dies without a Last Will he is deemed to have died intestate. New York Surrogate’s Court Procedure Act (“SCPA”) Section 103(28) defines “Intestate” as “A person who dies without leaving a valid will.”

The New York Probate Lawyer Blog has published many posts regarding the administration of estates where there is no Will. In these cases the decedent’s distributees (next of kin) have the right to file a petition with the Surrogate’s Court and ask to be appointed as the Estate Administrator. Continue reading

March 27, 2013

A New York Estate Can Be Distributed Where a Parent is Found to be Disqualified to Inherit

by Jules M. Haas

The Administration of a New York Estate where a decedent dies intestate is determined by the laws of descent and distribution. As the New York Probate Lawyer Blog has discussed in previous posts, New York Estates, Powers and Trusts Law (“EPTL”) Section 4-1.1 provides the list of priority of distributees who are entitled to receive a share of a decedent’s estate when such person dies without a Last Will (“Intestacy”). This list begins with a decedent’s spouse and children, and then goes on to parents, brothers and sisters and more distant next of kin.

New York Estate Lawyers are familiar with the due diligence necessary to determine the identity of a decedent’s next of kin and that sometimes is required when a person’s family tree is unclear. In some cases, the Court may require a Kinship Hearing to determine the rightful estate beneficiaries.

In other situations, the identity of the Estate Heirs may be easy to determine. However, other factors may complicate the Estate Settlement process. For example, a person may be identified as the decedent’s spouse, thus having priority to inherit. Sometimes there are questions concerning the status of the spouse and whether there was a valid marriage ceremony or if a divorce occurred prior to the decedent’s death. Additionally, a spouse may be disqualified to inherit where the spouse “abandoned the deceased spouse”. EPTL 5-1.3.

A similar disqualification can occur with respect to the inheritance rights of a parent. Pursuant to EPTL 4-1.4 a parent will be disqualified from receiving a share of a decreased child’s estate where the parent “(1) has failed or refused to provide for the child or has abandoned such child….”

Questions concerning a parent’s alleged abandonment are typically resolved in Estate Litigation that occurs in the Surrogate’s Court in connection with the Administration Proceeding. Parental rights to inherit from a child’s estate may be a very valuable item. Recently, a case was presented to Surrogate Bruce Balter (Kings County) entitled Estate of Ricardo Ramos. This case was decided on March 6, 2013 and reported in the New York Law Journal on March 25, 2013.

In Ramos the Court was asked by the Estate Administrator to approve a settlement of $900,000 for the wrongful death of the decedent who died due to an accident at work. The decedent’s distributees were his mother and father. The Administrator also asked the Court to allow the entire settlement to be distributed to the decedent’s mother claiming that the father had abandoned the decedent. Following the presentation of evidence to the Court it was found that the father abandoned the decedent “by neglecting or refusing to fulfill “the natural and legal obligations of training, care and guidance owed by a parent to a child . . . . .”

Estate issues regarding Kinship and determining Estate Distributees are important in all estate cases. As a New York Estate Lawyer I have represented many clients and assisted them in resolving concerns regarding inheritance rights.