Estate planning in New York is important because it allows a person to create planning documents such as a Last Will and Living Trust. Advance directives in the form of a Power of Attorney and Health Care Proxy can also be made. While these papers reflect a person’s intentions regarding the disposition of assets and personal care, they also allow the selection of fiduciaries, such as Executors, Trustees and Agents.
In situations where a Last Will is not in place, a person dies intestate. As discussed in numerous posts in the New York Probate Lawyer Blog, an intestate decedent’s estate is distributed to his next of kin called distributees. While the determination of kinship may sometimes be complicated and require the services of genealogists, the selection of the estate Administrator may be equally challenging and contentious.
Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration,” sets forth the right of priority of persons to receive appointment as an administrator of an intestate estate. As can be expected, a spouse has priority, then children, and then more distant relatives. Invariably, problems arise when there are multiple candidates occupying a priority class such as children or brothers and sisters.
The Surrogate’s Court tends not to want to appoint too many individuals to serve together. Co-fiduciaries can be appointed but five or six people serving together typically will not be granted by the Court. When there are multiple fiduciaries there is a likelihood of disagreement as to estate matters which may stalemate and impede estate settlement. This may lead to estate litigation among the co-administrators before the estate is finalized. It should be noted that SCPA Section 1001(f) provides that in making an appointment, the Court can give preference to the individual who has the largest share of the estate. Thus, a majority of the distributees may be able to select the administrator, subject to the Court’s discretion.
Regardless, of how the Administrator is ultimately chosen, it definitely matters as to who is to fill the position. The fiduciary should be trustworthy, diligent and have a desire to settle the estate efficiently and fairly. Also, it is very important that the chosen Administrator has a solid credit and financial history. This is because the Administrator will usually need to file a Surety Bond for close to the full value of the estate. A Surety Bond is meant to provide security for all beneficiaries and creditors against any transgressions by the Administrator. Surety companies will not generally issue bond coverage to individuals who have a poor credit rating or other negative financial history such as a bankruptcy.
Obtaining the appointment of an estate Administrator can involve many aspects of inter-personal relationships and estate laws and rules. I have represented clients in many Administration cases throughout the New York City Surrogate’s Courts. Call Me Now for a free confidential review of your estate issue. We provide 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.