When a person dies leaving a Last Will and Testament the Will is typically filed with the Court in the probate process. An essential provision in a Will is naming the persons to be appointed as Executor. The Executor is the person who is responsible for estate settlement such as the collection of assets, the payment of estate debts and expenses and distributing the net estate to the Will beneficiaries.
The provisions of a Will should not only name the Executor, the Will should designate a substitute or successor Executor in the event the primary person nominated cannot act as the fiduciary. It is not uncommon that the primary named Executor needs to be replaced. This can result from a number of reasons such as the primary fiduciary is deceased or ill or refuses to accept the appointment. When the first named Executor does not act as the fiduciary, the Court will appoint the named substitute.However, there are occasions when either the named substitute does not act as fiduciary or the Will provisions fail to name a substitute. When there is no named substitute Executor to act, the Court can appoint an administrator c.t.a. which is an administrator with the will annexed. Surrogate’s Court Procedure Act Section 1418 entitled “Letters of administration with will annexed; when and to whom granted”, provides for such an appointment. According to the statute the persons who can be appointed include the sole beneficiary of the estate or residuary beneficiary or other persons who are interested in the estate. In the event the Court cannot appoint someone who is otherwise eligible to act as fiduciary, the Court will then appoint the Public Administrator. The Public Administrator is a government official in each county who administers estates when there are no other authorized persons available to do so.
While it may seem that it is fairly easy to follow the priority designations of SCPA 1418, situations may arise where the pending appointment of an administrator c.t.a. results in estate litigation in the Surrogate’s Court. A recent case decided by Brooklyn Surrogate Margarita Lopez-Torres on December 5, 2016 reflects some of the problems that can be presented in the appointment process. In Estate of Waxman, a sole distributee of a decedent who had been specifically disinherited in the decedent’s Will, objected to the appointment of the Public Administrator as administrator of the decedent’s estate.
The distributee claimed that she was a person interested in the decedent’s estate because she would inherit if there was no Will. The distributee wanted to be appointed as administrator c.t.a. The Court found that the distributee lacked any actual interest under the decedent’s Will. The Court also found that the distributee did not obtain consents to her appointment from all of the Will beneficiaries. Therefore, the Court determined that the distributee did not qualify to be appointed as Administrator c.t.a. of the estate and approved the appointment of the Public Administrator.
I have represented many individuals in probate matters and the appointment of executors and an administrator c.t.a. Call me now if you have any questions regarding the probate of a Will or the appointment of an Executor.
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 Manhattan and Brooklyn. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.