Handling an estate without a will

Handling an estate without a will

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By Linda Toga, Esq.

The Facts: My uncle died without a will. He was never married and has no children. He owned a house and a car and likely died with significant debts. No one in the family wants to handle his estate because they are concerned that they will be personally responsible for paying that debt.

The Questions: Are their concerns valid? What happens if no one steps up to be named administrator?

The Answer: When someone dies without a will, the intestacy statute controls what happens to his or her estate. Generally, someone related to the decedent will petition the Surrogate’s Court in the county where the decedent lived to be named administrator of the estate.

In addition to filing a petition about the decedent, his family and his assets, the petitioner must provide the court with an original death certificate, signed waivers from other family members who are in line to inherit from the estate and, in many cases, a family tree. That family tree is needed to establish that all the relatives who are entitled to notice of the administration proceeding are, in fact, given notice.

Once appointed, the administrator is responsible for marshalling and liquidating the decedent’s assets and depositing the funds into an estate. In your uncle’s case, the administrator would close any bank or brokerage accounts your uncle may have had and arrange for the sale of his house and car. All proceeds would be deposited into an estate account.

The administrator then uses the funds in the account to pay the expenses of administering the estate and the legitimate debts of the decedent. Once those are paid, the administrator is responsible for distributing the balance in the estate account to the appropriate family members based upon the intestacy statute.

Since your uncle did not have a spouse or children, the assets remaining in the estate after the payment of expenses and debts would pass to his parents if they are alive. If they predeceased your uncle, the assets would be distributed to his siblings in equal shares. The administrator has no discretion with respect to distributions. She must follow the provisions of the statute.

The administrator is not personally obligated to pay any of the decedent’s creditors and is reimbursed from estate funds for any expenses she may incur in administering the estate. In addition, the administrator is entitled by law to receive commissions based upon the value of the estate. Since commissions are considered an administrative expense, they are paid before the decedent’s creditors and before distributions are made to family members.

If no one steps up to be named administrator, the county public administrator may be appointed to handle the estate. The Surrogate’s Court would appoint the public administrator who would then handle all aspects of estate administration set forth above. If no one in your family is willing to serve as administrator, any of your uncle’s creditors can petition the Surrogate’s Court to name the public administrator to handle your uncle’s estate. That way the creditors can be sure that they will be paid assuming there are adequate assets in the estate. 

Linda M. Toga, Esq. provides legal services in the areas of estate administration and planning, real estate and litigation from her East Setauket office.