Articles Posted in Estate Administration

The New York Court system contains a number of different Courts. For instance, in New York City there is the New York City Civil Court, the Family Court, the State Supreme Court, the Appellate Term and the Appellate Division. Additionally, each County has a separate Surrogate’s Court.

The Surrogate’s Court deals with the issues relating to a decedent’s estate. When a person dies leaving a Last Will and Testament, a probate proceeding is filed in the Surrogate’s Court. If the person dies intestate (without a Will), a petition for Letters of Administration would also be filed in the same Court.

All additional proceedings that may relate to estate matters are also filed in this Court. The jurisdiction of the Court is fairly broad. So various matters concerning kinship determination, Will Contests, Accounting Proceedings, Will construction proceedings and various disputes concerning claims and property interests relating to a decedent are typically determined by the Surrogate.

The Surrogate’s Court in New York is the judicial forum that appoints Executors and Administrators of an estate.

When a person dies and leaves a Last Will and Testament, the usual process is to appoint an Executor. The person who is to act as the Executor is named in the Will. Often a Successor Executor is also named.

The probate process requires that a petition for probate be completed and filed with the Court. This petition is usually completed and presented by the nominated Executor and requests that the Court admit the Will to probate. It also seeks to have Letters Testamentary issued to the petitioner.

Among the many fiduciary duties that an Executor or Administrator must perform is the duty to locate and collect estate assets.  There are a variety of assets which include bank accounts, security accounts, retirement funds, business interests, life insurance, annuities and real estate.   In New York, along with real property such as a single family home, a decedent may own a cooperative apartment or a condominium unit.

The job of the fiduciary is to collect these assets and ultimately distribute them or their proceeds to the estate beneficiaries.   In most instances it is fairly easy to identify and collect funds particularly when they are held in bank accounts or other financial institutions in the name of the decedent.  The New York Probate Lawyer Blog has devoted numerous blog posts to asset collection and estate settlement.

However, there are occasions when identifying and collecting estate assets can present difficulties.  An interesting example of a problematic situation was discussed in a Manhattan estate case entitled Matter of Estate of Solano.  This case was decided by Manhattan Surrogate Nora Anderson on September 30, 2019.  In Solano, the decedent had purchased an interest in her cooperative apartment which was one of the Mitchell-Lama program cooperatives.  Under this program the purchaser paid a small initial price and, upon death, the owner’s estate was only entitled to receive back the value of the owner’s initial investment.

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.

Important Facts Regarding Intestate Estates In New York

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When a person dies without a Last Will he is said to have died intestate.  In these cases,  a person’s estate is distributed according to Estates, Powers and Trusts Law section 4-1.1 entitled “Descent and distribution of a decedent’s estate.

When a person dies without a Last Will and Testament, he is deemed to have died intestate. This means that the administration of the decedent’s estate is to be controlled by the New York laws of intestacy. The primary statutory authority for intestate estates is Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate”. This statute provides the order of priority for the individuals entitled to inherit from the estate.

The New York Probate Lawyer Blog has published many articles regarding intestacy. Surrogate’s Court Procedure Act (SCPA) Section 1001 entitled “Order of priority granting letters of administration”, sets forth the persons entitled to be appointed as the estate Administrator. Continue reading

Very often the Surrogate’s Court requires that an Executor or Administrator post a bond as a condition to their appointment as a fiduciary. A Bond in the Surrogate’s Court is typically within the discretion of the Judge. Surrogate’s Court Procedure Act (SCPA) Section 710 entitled “Objections which require bond from fiduciary not otherwise required to file bond”, provides various directions as to the posting of a bond.

A bond is simply a form of insurance to protect the estate creditors and beneficiaries from possible estate loses. The New York Probate Lawyer Blog has discussed fiduciary bonds in earlier posts. When a person prepares a Last Will, one common provision is that the need to post a bond by the Executor is waived. On the other hand, in many intestacy administration cases, the Court requires that the Administrator post a bond as a condition to his appointment. Continue reading

When a person dies without a Last Will he is deemed to have died intestate. In cases of intestacy there are numerous facts that must be considered in connection with the appointment of an estate administrator and the settlement of a decedent’s estate. The New York Probate Lawyer Blog has published many articles regarding intestate estates.

At the outset, information regarding the decedent’s next of kin or kinship must be determined. The identity of the decedent’s kinship is needed in order to select the proper person to petition the Surrogate’s Court for Letters of Administration. Kinship will also provide the identity of the persons who are entitled 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 priority for inheritance. The decedent’s spouse and children have first priority to inherit. Continue reading

When a person dies it is common to refer to matters dealing with the decedent as issues concerning his “estate”. However, it is important to learn exactly what is meant by a person’s  estate”.  Upon death, an individual typically owns various assets. These may include real estate, bank accounts, brokerage accounts, individual retirement accounts, life insurance and pension benefits. All of these items comprise a decedent’s “gross estate”. However, a distinction needs to be drawn between the “gross estate” and a decedent’s estate for purposes of administration.

The assets owned by someone who dies that are held in his own name are going to be controlled by a person’s Last Will. If there is no Last Will, these items will be distributed according to the laws of intestacy. In these cases, the Surrogate’s Court appoints either an Executor or an Administrator. Assets that are held jointly or with a named beneficiary may be part of a decedent’s gross estate but are not part of the administration estate. The New York Probate Lawyer Blog has published many articles talking about the way various assets are transferred upon an individual’s death.

It is important to know that an Executor or Administrator is the only person authorized to deal with the affairs of the administration estate. The estate fiduciary has the power to collect assets, pay estate taxes and bills, sell estate property such as real estate and engage in estate litigation to resolve estate disputes.  The estate beneficiaries do not have this authority unless they are the Court appointed fiduciary.

When a person dies there are many issues that can affect the settlement of his estate. Initially, it must be determined wither the decedent had executed a Last Will. If so, then a probate proceeding is to be filed in the Court. In the event the decedent died intestate (without a Last Will), then an Administration proceeding is filed.

Another primary issue that needs to be considered is whether the decedent was a domiciliary of New York. Domicile is defined in the Surrogate’s Court Procedure Act (SCPA) Section 103(15) as a person’s principal fixed and permanent home. Domicile is important because generally the New York Courts only have jurisdiction over the estates of a person domiciled in New York at the time of death. A person may have numerous residences but he can only have one domicile. The New York Probate Lawyer Blog has discussed this issue in earlier posts. Continue reading