One of the most important benefits from engaging in estate planning and creating a Last Will and Testament is that a testator can select and name an executor and alternate executor. This is important since the person nominated to act as fiduciary is someone whom the testator trusts and intends to be in charge of settling an estate. Additionally, by nominating a person to be an executor, the nominee has the right to be appointed as the Preliminary Executor in the event the probate of the Will is delayed due to issues such as a Will contest or locating a decedent’s next of kin.
When a Will is not created and a decedent dies intestate, the appointment of an Administrator is controlled by the estate laws. New York estate lawyers turn to Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration,” to determine which individual has the right to be appointed. The New York Probate Lawyer Blog contains numerous articles regarding the estate administration process.
As can be expected, the priority for appointment as Administrator is given to a decedent’s surviving spouse, followed by children and then other descendants. While the statute appears straightforward, its provisions inherently allow for controversy when there is more than one person who has a right to be appointed and the eligible parties do not agree to work together. This situation is very common when the eligible parties are a number of children since each one has a right to act as Administrator but they do not get along. Thus, the Surrogate’s Court may be confronted with competing petitions for appointment and allegations that competing parties are not qualified to act for one reason or another. While a majority of the eligible parties may choose to elect one of the group, the ultimate resolution must be determined by the Court.
A recent Manhattan estate case entitled Estate of Brooks decided by Manhattan Surrogate Rita Mella on May 25, 2021 provides an interesting example of a dispute regarding the appointment of a fiduciary in an intestate estate.
In Brooks, the decedent did not have a Last Will. He was survived by wife number three and three children from prior marriages, one of whom was an infant. The two adult children, along with the former wife, petitioned the Court for Letters of Administration. The decedent’s current wife also petitioned for appointment.
The Court found that a prenuptial agreement which the current wife had entered into with the decedent precluded her appointment as temporary administrator. While the current wife claimed the agreement was not valid, the Court would not ignore the presumed validity of the agreement at this early stage of the litigation. Therefore, the Court appointed the two daughters and the former spouse who was acting as the guardian of the minor child.
The appointment of an executor or administrator of an estate can be a very complicated process and involve litigation in the Court at the outset of the estate process. I have represented family members and others in these matters on many occasions. Call Me Now for a free confidential review of your estate or guardianship issue. 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 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.