By Nancy Burner, Esq.
When a person does their estate planning, he or she will typically prepare a Last Will and Testament. A will contains a provision that nominates an Executor. Since there is a nominated executor, typically, in probate proceedings the appointment of the fiduciary is not complicated as it is controlled by the selection made by the testator.
It is significantly different when a person dies intestate (without a will). In these situations, the Surrogate’s Court is required to appoint an Administrator. The rules on the priority of who is eligible for appointment are contained in Surrogate’s Court Procedure Act. The statute contains a detailed order of priority in the court’s granting of letters of administration. Absent a showing that the person with statutory priority is ineligible to receive letters of administration due to several grounds including: that person is an infant; incapacitated; a non-domiciliary of the United States; a felon or does not possess the qualifications required of a fiduciary by reason of substance abuse or dishonesty, letters must issue to that person.
The decedent’s surviving spouse has priority to receive letters. Unless he or she is ineligible as stated above, the spouse will be appointed. This becomes an issue in many second marriage situations where the children of the first marriage do not get along with spouse from the second marriage. Unless there are grounds to disqualify the spouse, it is likely not worth pursuing objections to his or her appointment. Filing objections will delay the matter and cost a lot of money in legal fees with little likelihood of success.
Complications in the appointment of an Administrator also arise when there are several people in one category with equal priority to serve. This happens when the decedent has no spouse and several children. This situation can also arise in families where the decedent has no spouse, children, or surviving parents but several surviving siblings. Regardless of whose consent is required in each case, letters of administration can only issue to an eligible person(s) or person nominated by all interested parties.
It is not always advisable to resolve family disputes for letters of administration by agreeing to have the two or more administrators serve together. If the level of hostility is great, it is unlikely that they will be able to work together for the smooth administration of the estate. The parties might be able to agree on a third party to serve, known as a designee.
If not, the court may appoint one of the parties or might appoint the Public Administrator. While the Public Administrator will ensure fairness in the process, its fees are typically higher than if a family member served. The Public Administrator will take statutory commissions if appointed, and the Public Administrator will also be entitled to have its attorneys’ fees and the expenses of its office paid from the estate.
The appointment of an Administrator can be as simple or as difficult as the family dynamics allow. Regardless, if you are seeking to become the administrator of an estate, you should seek the advice of an attorney experienced in estate administration to guide you through the process. Getting appointed by the court is only the first step in the process of administering an estate.
Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.