Estate planning in New York is an important consideration for many reasons. In addition to designating the manner in which a persons assets are to be distributed, an important aspect of planning is the nomination of an estate Executor. By creating a Last Will a testator can name the persons who are to act as Executors and also Successor Executors, if needed. Obviously, selecting the individuals that you trust and have confidence in to carry out the terms and intentions of the Will provisions provides the essence of insuring that a plan for estate settlement is accomplished.
When a person dies intestate, or without a Will, his estate becomes subject to the rules and laws concerning an Administration proceeding rather than the probate process. The Administration proceeding is focused on the appointment of an estate Administrator. Since there is no Will that nominates a fiduciary, the proceeding is controlled by Surrogate’s Court Procedure Act (SCPA) 1001 which is entitled “Order of priority for granting letters of administration”. The statute provides the list of the decedent’s next of kin who have the right to be appointed as the estate Administrator. According to the statute, the decedent’s spouse has priority, then children, grandchildren, the decedent’s parents and then brothers and sisters. While the statute provides an orderly process for the appointment of an Administrator, the persons who have priority may not have been the first choice of the decedent if he had named an Executor in a Last Will. Continue reading →