When a person dies without a Last Will and Testament he is said to have died intestate. In these cases there are two statutes in New York that must be referred to for primary consideration. Estates, Powers and Trusts Law (EPTL) section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, lists the priority of the decedent’s distributees (next of kin) who are entitled to inherit the estate. As can be expected, a decedent’s spouse and children have the top priority followed by a decedent’s parents and then brothers and sisters. New York estate lawyers are familiar with the schedule of persons who have inheritance rights.
The other important statute is Surrogate’s Court Procedure Act (SCPA) section 1001 entitled “Order of priority for granting letters of administration”. This provision lists the persons who have the right to be appointed as the estate administrator. Again, as expected, a surviving spouse and children receive top priority. The New York Probate Lawyer Blog has published numerous articles concerning estate administration proceedings and EPTL § 4-1.1 and SCPA §1001.
One of the common issues that arise and result in estate litigation in the Surrogate’s Court is when more than one person wants to act as the Administrator and there is a dispute as to who should be appointed. This can happen when the decedent is survived by brothers and sisters and there is more than one person who has an equal right to the appointment. Typically, one of the individuals will file a Petition for Letters of Administration in the Surrogate’s Court and another distributee will file Objections to the appointment and a Cross-Petition for the opposing party to be appointed. While SCPA §1001 allows the Court to issue letters of administration to more than one person, this may not be possible if the parties do not get along. Also, the Courts have recognized that the appointment should be given a distributee who has the largest share of the estate or is preferred by a majority of the other distributees.