Articles Posted in Estate Settlement

In an earlier blog-post on April 25, 2025 in the New York Probate Lawyer Blog, the role of a Public Administrator was examined. As discussed in the post, the Public Administrator is a government agency in New York City. Each New York City County has a different Administrator whose role is to handle estates of decedent’s primarily where there is no other person available or qualified to do so. This situation arises most commonly where an individual dies without any known next of kin or the only known heirs are cousins or more distant relatives.

There are many additional situations in estate matters in the New York Surrogate’s Court where the appointment of a Public Administrator may occur. Another likely situation is where estate litigation is pending and various parties cannot agree to the appointment of an estate fiduciary. Similarly, it may appear in a particular case that a person who was otherwise a possible appointee cannot or should not serve as an Executor or Administrator due to a conflict or other disqualifying factor. Also, in some estates the Court may require that the appropriate fiduciary file with the Court a Surety bond as security for his appointment. If the individual is unable to qualify for a bond due to poor financial credit or some other reason, it may be necessary to have a Public Administrator act as Administrator or Executor since the public official does not need to be bonded.

Recently, there have been a number of Surrogate’s Court cases where the Court has resorted to the appointment of a Public Administrator to facilitate estate settlement. In a Manhattan estate case entitled Will of Magdalini Jacobs, decided by Manhattan Surrogate Hilary Gingold on May 29, 2025, the Court appointed the Public Administrator of New York County to administer a decedent’s estate. In Jacobs, the decedent was survived by two daughters one of whom petitioned the Court to be appointed as Administrator c.t.a. The non-petitioning daughter objected to her sister’s appointment and questioned certain post-death actions by the Petitioner. At a Court conference, neither party would consent to the appointment of the other and alleged that the other party was unfit to act as a fiduciary. In view of this circumstance, the Court appointed the Public Administrator as Temporary Administrator in the interest of justice.

The starting point of an estate is the appointment of an estate fiduciary. When a decedent leaves a Last Will and Testament, the Will must be admitted to probate in order for its terms to become effective. The Court typically appoints the Executor who has been nominated in the Will. Letters Testamentary are then issued. The New York Probate Lawyer Blog has published numerous articles concerning probate and estate settlement.

If a decedent does not leave a Will the Court appoints an estate Administrator. The persons who qualify for appointment are usually the decedent’s next of kin. Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration” contains the provisions regarding the appointment of estate administrators.

After an Executor or Administrator is appointed, the fiduciary takes on the responsibility of settling the estate. The decedent’s assets must be identified and collected. Unpaid bills, debts and claims need to be reviewed and contested or satisfied. Various assets such as real estate may need to be sold.

After the death of an individual, it may be necessary to administer a decedent’s estate. This is essential when a person dies leaving assets such as financial accounts or real estate owned in the person’s name. In cases where a decedent’s assets are held in his name along with another person, such as joint bank accounts or with named beneficiaries, administration may not be needed. This is because such assets pass to the joint owner or beneficiary automatically by operation of law. As an example, if a person dies and leaves a 401K financial account with a relative named as beneficiary, then this asset will be paid directly to the named beneficiary without estate administration. The New York Probate Lawyer Blog contains many articles discussing estate settlement.

When assets are held in a decedent’s name alone, these items need to be distributed in a certain manner. If there is a Last Will and Testament, the Will must be probated and the terms of the Will followed for asset distribution. If a person dies intestate, without a Will, then his estate is distributed according to the laws of intestacy. The decedent’s distributees (heirs) are entitled to receive the estate amounts. Typically, the person in charge of handling the affairs of an estate is an executor under a Will or a family member who qualifies to act as an estate administrator according to the intestacy provisions in the Surrogate’s Court Procedure Act.

In cases where there is no available or appropriate person to be appointed to control estate affairs the Court might appoint a Public Administrator. The office of a Public Administrator in New York City is a government agency. The Public Administrator in each County has responsibility for handling the estates of decedent’s where there is no one else qualified to do so. Attorneys who represent the Pubic Administrator handle the Surrogate’s Court proceedings.

New York estate settlement often involves many different issues and concerns.  In the first instance, after a person’s death, there is a need for the appointment of an executor or administrator.  The procedure which needs to be followed in the Surrogate’s Court is determined by whether a decedent had a Last Will and Testament.  If a Will is located, then it is filed with the Court to commence the probate process.  When a Will cannot be located, then a proceeding for intestate administration must be utilized.  The New York Probate Lawyer Blog has published many other articles concerning probate and also the administration of an intestate estate.

Once a fiduciary is appointed, there are a number of tasks and responsibilities which need to be undertaken.  It is imperative to ascertain the full nature and extent of a decedent’s assets.  Many times, the identity of assets is not clear or may not be easily obtained.  Records of accounts may be available among a decedent’s physical records.  However, it is prevalent today for many assets and asset information to be stored only in a digital format.  If passwords are unknown, an estate fiduciary could be severely limited in his ability to identify and collect these items.

A recent Manhattan estate case entitled Petition of Terence M. Healy, decided by Manhattan Surrogate Hillary Gingold on August 8, 2014, involved a request by an estate administrator to access a decedent’s information which was held under the Apple User ID and stored in the decedent’s iPhone and MacBook.  In this proceeding, Apple did not interpose any objection to the Court petition.  The Surrogate allowed the estate administrator to obtain access to the digital information to ascertain asset information and other personal information of the decedent.

A decedent’s estate consists of many different types of interests and assets.  These items may include bank accounts, security or other financial accounts, real estate interests, various retirement accounts such as individual retirement accounts, pensions and 401(k) plans, and business interests in partnerships or limited liability companies.  There can also be interests in creative works, trademarks and copyrights.

At the inception of an estate, a determination must be made as to whether a Last Will and Testament exists which needs to be probated.  In the event there is no Will, then letters of administration would be required to settle the estate under the intestacy statutes.  The appropriate proceedings must be filed in the Surrogate’s Court.  In either case, a fiduciary is needed to have the authority to handle the estate assets.  Assets that are owned by a decedent in his name alone pass through the estate.  When an asset has a named beneficiary or a joint owner with survivorship rights, these items are distributed directly to the other named party.

A fiduciary, whether an executor or administrator, has various powers and authority regarding estate affairs.  The Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciaries’ Powers” provides a detailed list of powers.  These include powers to take possession of estate property and to sell or dispose of such property.

The New York Probate Lawyer Blog has published many articles concerning estate settlement.  Factors that can affect a New York estate are enumerable.  In the first instance, a determination must be made as to whether a Last Will and Testament needs to be probated.  If no Will exists, than an intestate administration must be commenced.  Different aspects and procedures apply to these types of proceedings and the filings which are required by the Surrogate’s Court.  Also, the rights of potential estate beneficiaries are determined either by the provisions of a Will or the statutory inheritance directives in the Estates Powers and Trusts Law Section 4-1.1 entitled “Decent and distribution of a decedent’s estate.”

Another very important consideration affecting all estates concerns the issue of which jurisdiction’s laws control matters regarding estate administration.  The topic referred to is known as “domicile.”  Domicile is basically a determination of the place where a person or decedent has their primary home.  A person may have many residences but can have only one domicile.  This Probate Blog has published previous posts concerning this issue.

For example, a person who dies and has a New York domicile will have his estate controlled by the laws of New York, for the most part.  Determining a person’s domicile is not always easy.  Someone may have an apartment or house in New York and also Florida, or another state or country.  Domicile is a matter of where a person intends to have his primary home.  However, there are a number of independent factors which go into the determination, such as where a person filed local taxes, the location of their employment, where their car was registered and driver’s license was issued.

The New York estate laws contain provisions concerning the various relationships between family members.  There are statutes concerning spousal rights and also inheritance rights relating to other family members.  For example, a New York spouse has the ability to make a claim against the other spouse’s estate if they are disinherited. Estates, Powers & Trusts Law Section 5-1.1-A entitled “Right of election by surviving spouse” provides that a disinherited spouse can file a right of election to claim one-third (1/3) of a decedent’s net estate.  The New York Probate Lawyer Blog contains many articles concerning a spouse’s right of election.

On the other hand, a person has an absolute right to disinherit any other person, including children.  Children have no right to receive a share of a parent’s estate if a person leaves a child out of a Last Will and Testament or does not have a child as a beneficiary of an asset that passes by operation of law.

There are additional considerations where a decedent does not have a Last Will.  Estate settlement and distribution will be controlled by the laws of intestacy.  EPTL Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” sets forth the manner by which an intestate estate is to be paid.  There is a priority among the decedent’s family members and a spouse and children are at the top of the list.

An executor or administrator is responsible to complete estate settlement.  There are many aspects to settling an estate.  The fiduciary must identify estate assets and actively seek to collect the assets.  Additionally, an estate representative must ascertain the various debts and claims which may be outstanding.  Also, expenses of administering an estate must be paid.  These expenses include various costs such as amounts needed to protect assets and to pay attorneys’ fees and accountant fees.  There may also be costs associated with the sale of assets such as a house.

The fiduciary is obligated to perform these tasks for the benefit of the estate as a whole and cannot favor one beneficiary over another.  There is a fiduciary duty to act properly to avoid a breach of fiduciary duty.  The Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciaries:  Powers, Duties and Limitations” provides various rules in this regard.  The New York Probate Lawyer Blog has published many articles concerning the role of an administrator, executor and trustee.

As noted earlier, a fiduciary must pay estate expenses.  While expenses are paid from estate assets, sometimes there are not enough liquid assets to allow for payment.  In such a case, assets may need to be sold.  While in many cases, the sale of assets such as a house owned by a decedent may be a straightforward transaction, this is not always so.  An interesting situation recently arose in an Erie County estate.  Matter of Manchester, which was decided by Erie County Surrogate Acea M. Mosey on August 18, 2022, involved a proceeding to settle the accounting of the executor.  One of the issues concerned the real estate which was owned by the decedent.  The decedent’s Last Will and Testament had specifically devised the property to his daughter.  Although the decedent died in 2013, the deed transferring the property to the daughter was filed in 2018.  The problem, however, was that at the time of the deed transfer, there were extensive unpaid estate claims and administrative expenses.  The real property was the only estate asset which could be used to pay these expenses.

One of the most valuable assets in an estate is typically real estate.  This asset is usually the decedent’s residence.  Since real estate predominates as an estate asset, many aspects of real estate law can be involved in estate settlement.  Also, estate litigation in the Surrogate’s Court often concerns this asset.  Issues that arise may concern the following matters:

1. Title or ownership of the property.
2. Claims against the property. These claims may be in the form of an outstanding mortgage or liens which arise due to judgments against the decedent or unpaid taxes or property violations.