Estate planning in New York is an important consideration for many reasons. In addition to designating the manner in which a persons assets are to be distributed, an important aspect of planning is the nomination of an estate Executor. By creating a Last Will a testator can name the persons who are to act as Executors and also Successor Executors, if needed. Obviously, selecting the individuals that you trust and have confidence in to carry out the terms and intentions of the Will provisions provides the essence of insuring that a plan for estate settlement is accomplished.
When a person dies intestate, or without a Will, his estate becomes subject to the rules and laws concerning an Administration proceeding rather than the probate process. The Administration proceeding is focused on the appointment of an estate Administrator. Since there is no Will that nominates a fiduciary, the proceeding is controlled by Surrogate’s Court Procedure Act (SCPA) 1001 which is entitled “Order of priority for granting letters of administration”. The statute provides the list of the decedent’s next of kin who have the right to be appointed as the estate Administrator. According to the statute, the decedent’s spouse has priority, then children, grandchildren, the decedent’s parents and then brothers and sisters. While the statute provides an orderly process for the appointment of an Administrator, the persons who have priority may not have been the first choice of the decedent if he had named an Executor in a Last Will. Additionally, because the decedent’s wishes are not expressed in a Will, there may be controversy and estate litigation amongst the surviving next of kin regarding the appointment. For example, if the decedent is not survived by a spouse and there are a number of surviving children, there may be disagreement between them as to which ones or one should be appointed. While each child has an equal right to be appointed, it is unlikely that a Court will appoint 6 or 7 children to act together when the decedent had many offspring. In these cases the Courts often look to factors such as which child has the consent of a majority of the children.
The recent case of Matter of Mathai decided by Staten Island Surrogate Robert Gigante on January 7, 2015 shows the problems that arise with Administration appointment. In Mathai, the decedent was survived by a spouse and two children from a prior marriage. Under the statute, the wife had priority to be appointed as Administrator. Since the decedent did not have a Will, he did not provide a named executor. The two children opposed the wife’s appointment by claiming that under SCPA 707 she was unfit to be appointed due to dishonesty, hostility and other factors. The children also questioned the validity of the wife’s marriage to the decedent.
The Court dismissed the children’s objections since it found that there was no substantive basis to disqualify the wife. The Court noted that mere allegations or conjecture are insufficient to override the statutory priority for appointment.
I have represented many family members in connection with their appointment as Administrators including situations where there has been disputes regarding their petition to the Court. I have also assisted clients where they encounter situations involving the disqualification or removal of a fiduciary such as an Administrator or Executor. Experienced legal guidance and familiarity with Surrogate’s Court procedures is important in these cases.
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 Queens. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.
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