Following the death of an individual, there may be a need to create a formal estate to deal with the decedent’s assets and affairs. The creation of an estate is typically either a probate estate where the decedent leaves a Last Will and Testament or an administration estate where the decedent dies intestate.
There are different methods to determine the identity of the individual who is to be appointed as the estate fiduciary. In the case of a probate where there is a Will, the document provides for the nomination of an executor. When there is no Will, the New York estate laws, specifically, Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration,” provides the direction as to who can be appointed as estate administrator. In either situation, the initial consideration for the person who might be appointed as fiduciary is whether they understand the responsibility about to be accepted and whether they want to accept the position.
Acting as an estate fiduciary is a big responsibility. The executor or administrator must process a petition through the Surrogate’s Court to effectuate the appointment. This process may entail a lot of work, particularly in cases where there may be a Will contest, kinship issues or disputes among parties as to whom should be appointed by the Court. In all of these matters, the assistance of experienced estate lawyers familiar with Surrogate’s Court litigation should be obtained.
It is noted that an individual does not have a legal obligation to act as administrator or executor. If someone is named as executor in a Will or has a statutory right to become an estate administrator, the person can decline to accept the appointment. In this regard, when a person is preparing an estate plan with a Will and/or a Trust and other documents such as a power of attorney and health care proxy, it is always a good idea to ask the individuals nominated in the documents such as a proposed executor or trustee whether they would be willing to serve in such capacity. If they indicate that they would be reluctant to serve, different appointments should be made.
Estate fiduciaries have a lot of powers and obligations. They need to locate, protect and collect estate assets. In addition, the decedent’s debts and other obligations must be resolved. These may include mortgages, business obligations, credit card balances, unpaid taxes and various creditor claims. The New York Probate Lawyer Blog contains dozens of articles concerning estate settlement and fiduciary activities.
The fiduciary also must settle the estate. Beneficiaries are entitled to receive an accounting as to the transactions entered into. Sometimes the beneficiaries object to the conduct of a fiduciary and may claim that there was a breach of fiduciary duty. These matters may need to be resolved in an accounting proceeding in the Court.
As can be seen, becoming a fiduciary for an estate requires a lot of work and responsibility. In most cases the estate attorney works closely with the fiduciary and assists with performing day to day functions. I have represented dozens of executors and administrators over the past forty years in probate, administration, accounting and other estate proceedings. Call Me Now if you have a question regarding your estate case. We provide a free confidential review, reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.