New York Probate Lawyer Blog
When an individual dies it seems more than apparent that the decedent no longer has the ability to act on his own behalf. Likewise, others cannot interact or engage in actions that affect the deceased person. It is for that reason that the New York estate laws provide for the appointment of an Executor or Administrator who has the legal authority and power to act in the place and stead of the decedent.
The New York Probate Lawyer Blog contains many posts discussing the duties and powers of estate fiduciaries. As explained, an Executor is appointed when a Last Will is admitted to probate. An Administrator is appointed when a person dies intestate. The Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act contain the statutory provisions that allow for the appointment of the fiduciary. One of the main goals when planning an estate is to provide guidance for the Executor so that the decedent’s intentions can be followed after death. Since the deceased person can no longer act for himself or express his desires, a fundamental goal when planning an estate is to provide the fiduciary with instructions and a roadmap to follow that is prepared by the testator.
Once a fiduciary is appointed by the Surrogate’s Court, he essentially steps into the role of the decedent and beneficially acts on his behalf regarding the settlement of the deceased person’s affairs. These matters range from the collection of assets, to the payment of bills and the defense of lawsuits or settlement of claims that may have existed against the decedent. The failure to recognize the need for a fiduciary appointment by the decedent’s survivors or others who need to interact with the decedent’s affairs can lead to confusion and unsatisfactory results. At a minimum, the settlement of a person’s estate may be needlessly delayed or complicated by the failure to recognize the need for a fiduciary appointment. A recent decision by Nassau Justice Randy Sue Marber demonstrates the unwanted outcome when the formalities of a fiduciary appointment are ignored. In Kim v. Smith, which was decided on January 5, 2015, Justice Marber was presented with a case where a defendant named Robert Smith was being sued for damages due to an automobile accident that occurred in 2008. Mr. Smith died in December 2009. However, in 2011, before an Administrator was appointed for Smith’s estate, the Summons and Complaint was served on Smith by posting the papers on his last known residence. Ultimately, the Court dismissed the lawsuit and referred to the long established rule that a dead person cannot be sued. Instead, any legal proceedings must be commenced against the duly appointed estate representative.
I have represented family members and others in connection with probate and administration proceedings seeking the appointment of an estate fiduciary. These Court filings may be complex and time consuming and experienced legal guidance is essential so that a decedent’s estate can obtain the legal authority and power to properly settle the decedent’s affairs.
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 Brooklyn. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.
Jules Martin Haas provides his clients and members of the community with a free monthly e-newsletter which contains articles covering a variety of legal topics including estate planning, financial matters and real estate. If you wish to be placed on the e-newslist, simply e-mail me at jules.haas@verizon.net. You can cancel receiving the newsletter at anytime.