When a person creates an estate plan he typically prepares a Last Will and Testament. A Will contains a provision that nominates an Executor. Thus, in most probate proceedings the selection of the estate fiduciary is not complicated and is controlled by the appointment made by a testator in a Will.
This situation is much different when a person dies intestate – without a Will. In these cases where the Court is required to appoint an estate Administrator, direction must be obtained from Surrogate’s Court Procedure Act (SCPA) section 1001 entitled “Order of priority for granting letters of administration”.
Pursuant to this statute, the persons entitled to be appointed as Administrator are given priority based upon family relationship. A spouse of the decedent has first priority, followed by children, grandchildren and then father and mother, brothers and sisters. A frequent issue that arises in these cases is that there may be multiple individuals in a category who want to act as Administrator and who disapprove of the other applicants. Since each of these persons has an equal statutory right to be appointed, it is often up to the Court to make a determination as to the appropriate appointee. This may lead to Estate Litigation in the Surrogate’s Court.
A recent decision by Monroe County Surrogate John Owens on August 28, 2019 in the case of Matter of Estate of Pitts, provides a good insight into this area. In Pitts the decedent was survived by five siblings. One of the siblings filed a petition to be appointed as administrator and another sibling then filed a cross-petition for her appointment. The cross-petitioner claimed that the original petitioner was not an appropriate person to be the Administrator because he had used a Power of Attorney to transfer the decedent’s assets and was intending to distribute them in accordance with the decedent’s oral wishes and not in accordance with the laws of intestacy as provided by Estates, Powers and Trusts Law section 4-1.1 entitled “Descent and distribution of a decedent’s estate”.
The Court decided to appoint the petitioner since the transfer of the decedent’s assets was done innocently and the funds were still intact. Also, the decedent’s attorney had testified that the decedent had faith and confidence in the petitioner. It was the Court’s view that the most important consideration was to find the most suitable person to act as the fiduciary
As can be seen in Pitts, litigation in the Surrogate’s Court can be avoided if a person creates a Last Will and nominates an executor. I have represented many individuals in estate administration cases and contested appointments of Administrators and Executors. Call me now for a free review of your estate problem. We offer reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Queens County, Brooklyn and Manhattan. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.