Your “probate estate” is all the property you own at your death that did not pass automatically through a trust or beneficiary designation. When you die, your estate must be administered – this is the collection and management of estate assets, paying your debts and taxes, and finally making distributions to your heirs or beneficiaries. In order to administer your estate, a fiduciary must be appointed. The fiduciary will be either an Executor, who is someone named in your Last Will and Testament, or an Administrator, who is appointed by the court if you died without executing a Will. The fiduciary is the person empowered to take all the actions associated with marshalling your assets, paying your debts and making distributions to your heirs.
An estate administrator or executor is empowered by the Surrogates Court through the issuance of Letters Testamentary or Letters of Administration. This is the document the estate fiduciary will present to financial institutions and other parties to prove they have the power to act on behalf of the estate.
If a decedent has a Last Will and Testament that named an Executor who is qualified and willing to act, the court will issue them Letters Testamentary and they will be able to administer the estate in accordance with the terms of the Last Will and Testament. There are cases in which estates wind up involved in litigation because there is a party that believes that the named executor is either unfit or unqualified to act and feels someone else should be appointed in their stead. If a decedent died without a Last Will and Testament, the court will appoint someone qualified to act as Estate Administrator. The Surrogates Court Procedure Act Section 1001 outlines an order of priority for granting Letters of Administration in cases with no named estate fiduciary or where the appointment of a fiduciary is being contested. The order, in summary, is as follows:
- the surviving spouse
- the children
- the grandchildren
- the father or mother
- the brothers or sisters
In New York State each county also has an official called the Public Administrator who will step in where an estate has no willing and qualified individual to serve as estate Administrator. The Public Administrator is usually required where a decedent has no known or surviving kin or if the next of kin are only first cousins on one side (with exceptions). Each county’s Public Administrator will use their own attorneys to help them administer the estates of these decedents. It is sometimes the case that no estate will be commenced until a creditor of the decedent requests that the Public Administrator be appointed and an estate commenced so that their debt can be paid.
Call the Law Offices of Roman Aminov at 347-766-2685 to speak to a knowledgeable probate and estate administration attorney in Queens, NY who has experience with opening of estates in which the fiduciary appointment is at issue.
This article is for educational purposes only - to provide you general information, not to provide specific legal advice. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed estate attorney in NY or your state.
