Articles Posted in Intestate Administration

When a person dies without a Last Will and Testament he is deemed to have died intestate.  In these cases, there are specific New York estate statutes and procedures which are applicable.  The New York Probate Lawyer Blog has published many articles concerning intestate estates as well as topics such as probate, accountings, Surrogate’s Court and Article 81 Guardianships.

The primary statute which is to be looked at is Estates, Powers and Trusts Law Section 4-1.1 which is entitled “Descent and distribution of a decedent’s estate”.  This statute which this Blog has discussed many times, provides the priority of a decedent’s next of kin to inherit the estate.  For example, a spouse and children have priority before parents and siblings.  The statute sets forth the priority all the way to more distant relatives such as cousins.  Thus, in estates where there is no Last Will, the identities of distributees is a paramount issue.  There are many cases where a person’s heirs are either unknown or cannot be located.  There may be a need to hire a genealogist or investigator to obtain this information.  When a decedent’s family tree is unclear or the closest relatives are distant, the Surrogate’s Court may require a Kinship Hearing to resolve these issues.  Proof of kinship may be very difficult since birth, death, marriage and other records and information may be hard to locate particularly in foreign or out of state places.

Another very important statute is Surrogate’s Court Procedure Act Section 1001 which is entitled “Order of priority for granting letters of administration”.  This statute provides for the persons who have the priority right to be appointed as the Administrator of the estate.  When there is a Last Will, the document sets forth the named Executor so this statute is generally not applicable in probate.

One of the primary reasons for implementing an estate plan is to afford a person the opportunity to select or nominate estate fiduciaries.  When one thinks about planning an estate, the initial considerations regarding the creation of a Last Will and Testament or a Revocable Trust are the beneficial provisions concerning the disposition of assets.  Of course, while selecting beneficiaries and alternate beneficiaries, as well as the assets or shares they are to receive, is a prominent aspect of any plan; it is also essential that sufficient consideration be given to the selection of fiduciaries.  Fiduciaries may be executors, trustees or guardians for minors.

The nomination of a fiduciary is important since the creator of the document is placing his trust in a named person or persons to administer an estate or trust and to put into effect the creator’s intentions.  Executors and trustees may need to serve for long periods of time and may need to confront and resolve many complex issues affecting an estate or trust ranging from taxes, creditors’ claims, and other sorts of litigation.

When a decedent does not leave a Will, the selection of an intestate estate administrator is left to the determination of the Surrogate’s Court by application of the estate laws.  In particular, Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration” provides a list of persons who have priority in being appointed as the estate administrator.  The New York Probate Lawyer Blog has published numerous articles concerning the appointment of estate administrators and estate settlement.