New York Real Estate Lawyers Blog
For various reasons, not everyone dies has a Will that disposes of their property and identifies the person authorized to manage such distribution. In such a case, the surviving heirs should engage the services of an attorney to submit a Petition to the Surrogate’s Court in the County in which the deceased resided for Letters of Administration. Once duly appointed by the Court, the Administrator has similar powers to an executor for an estate. The Administrator locates, collects and distributes assets and settles claims and liabilities against the estate.
When a person dies without a Will (legally known as “intestate”), their assets will be distributed to particular classes of relatives, in the order prescribed by Estates Powers and Trusts Law Section 4-1.1 . For instance, if a person left no surviving spouse, children, or parents, his assets would be inherited by his sister. The common perception that the assets of a person dying without a Will “go to the state” is a myth when a relative in the proper class has survived the deceased. In an administration proceeding, the person who will inherit the assets is the proper person to act as petitioner and commence the proceeding. Survivors who have superior or equal rights to be appointed Administrator (such as siblings of the proposed Administrator) are to submit a Waiver, Renunciation and Consent to the appointment of the Administrator along with the Petition.
The petitioner is required to confirm that she conducted a diligent search in the deceased’s personal papers and safe deposit box, but did not find a Will. Such a diligent search should also include the Surrogate’s Court record retention files, in the event that the deceased filed her Will with the Court.
Depending on the family composition, children born out of wedlock to the deceased may need to be included in the proceeding, so that they have the opportunity to inherit. Documentary proof such as a birth certificate and order of filiation establishing paternity may be required to establish the rights of an out-of-wedlock child. The Surrogate’s Court may require the submission of a family tree and Affidavit of Heirship in order to confirm familial relations with respect to children born out of wedlock, relatives of distant relation and cases where there are few surviving relatives.
Other special circumstances include survivors under eighteen years of age and noting whether they have a court appointed guardian. Further, survivors may be considered to be “under a disability”, requiring the appointment of a guardian ad litem to protect their interests. Persons in the disability category include survivors who are incarcerated, a person with a mental or physical disability or unknown heirs.
Persons who are not United States citizens are treated differently in an administration proceeding. For instance, if a person is not a United States citizen, then she cannot serve as the sole administrator and needs to locate a United States citizen to serve with her. Further, if the deceased was the citizen of another country or the survivors are citizens of another country, then the office of the Consul General for such country needs to be served in the administration proceeding.
Our firm recommends that the following documents be provided to us to commence an administration proceeding: death certificate, paid funeral invoice, divorce decree (if applicable), and list of assets in the sole name of the deceased and liabilities with amounts. We will prepare the necessary documents, file and serve same as required and attend Court appearances as necessary to obtain the Letters of Administration required to transfer assets and settle claims of the estate.