If you want to become an administrator of an estate in New York, you will need to comply with certain rules and procedures. Although these rules can be confusing, New York probate attorney Attorney Andrew Lamkin can help you navigate the maze. It is important to understand the distinction between “executor” and “administrator” in New York, however, because not all states make this distinction. Contact us today.
“Executor” vs. “Administrator”
Be careful. In most states, the terms “executor” and “administrator” are interchangeable. Not so in New York. To become an executor of an estate in New York, you must be named as such in the decedent’s will. The New York Surrogate’s Court appoints an administrator instead of an executor when the decedent failed to leave a valid will.
Compensation
As an estate administrator, you are entitled to significant compensation. The estate itself will pay your compensation. New York law sets the rate of compensation, and it depends on the total value of the estate. At current rates, for example, your fee will be $5,000 for an estate worth $100,000, and your fee will be $19,000 for a fee worth $500,000.
Appointment Procedure
Securing an appointment as an administrator is not as straightforward as securing an appointment as an executor, because you do not have the advantage of being nominated in the decedent’s will.
Step 1: Find Out Which Potential Candidates Survived the Decedent
When a person dies without a will, the choice of administrator is determined by SCPA § 1001. The Surrogate’s Court will commence an administrative proceeding to make the appointment. SCPA § 1001 provides a hierarchy of individuals who the court may appoint as executor. The court may appoint the decedent’s:
- Surviving spouse;
- Children;
- Grandchildren;
- Parent;
- Sibling; or
- Any estate beneficiary, in order of the value of the shares of the estate that they are entitled to receive.
New York probate law is complex, and certain nuances of the law have not been covered. Some ambiguity remains, despite the apparent clarity of the foregoing list. Who will the judge choose among three surviving children who petition for administrator, for example? Alternatively, suppose that the surviving spouse petitions for administrator, but the eldest child asserts that the spouse is mentally incapacitated? These types of disputes are not at all uncommon.
Step 2: Gather the Appropriate Documentation
To petition the Surrogate’s Court for the position of Estate Administrator, you must first gather the following documents:
- A certified copy of the decedent’s Death Certificate. You can order one online if you qualify. Most family members do qualify.
- A copy of the funeral bill, with proof that it has already been paid.
- An Affidavit of Heirship, if the decedent was survived by only one relative or only by cousins. A “disinterested person” (someone who has no stake in the outcome of probate proceedings) must witness the survivor’s signature, and a notary public must notarize it.
Step 3: Fill Out the Appropriate Forms
You must complete the following forms (the court may require other forms as well):
- Petition for Letters of Administration.
- Waiver of Process; Renunciation and Consent to Appointment of Administrator—The court will send this form to anyone with an equal or superior right to become the estate administrator. If they fill it out and return it, they will waive their right to become administrator, thereby paving the way for the Surrogate’s Court to appoint you.
- Citation—A Surrogate’s Court Citation notifies necessary parties that the court requires their participation in the probate process. A competitor for the position of administrator might come to court on the Citation and dispute your petition.
- Affidavit of Assets and Liabilities—This document is required when the value of the estate exceeds $50,000.
Consult with an attorney before turning in these forms because the appropriate responses are not always obvious.
Step 4: Calculate the Filing Fee
The amount of the filing fee depends on the gross value of the estate. The larger the estate, the larger the filing fee. This fee is not exorbitant. For estates valued at under $10,000, for example, the fee is only $45. For estates valued at half a million dollars or more, the filing fee is still only $1,250. All other filing fees fall between these two values.
Step 5: Submit the Forms at the Surrogate’s Court
Go to the Administration Department in the Surrogate’s Court of the county where the decedent died or owned real property. Submit the forms and pay the fee.
Step 6: Attend the Hearing
Attend a hearing at the Surrogate’s Court if (and only if) the court issued you a Citation ordering you to appear. Your court date should appear on the Citation.
The foregoing is a general outline of the procedures for prompting the Surrogate’s Court to appoint you the administrator of a New York estate. Almost every case, however, has complications and ambiguities that do not appear above.
Letters of Administration
If the court appoints you administrator, it will issue you Letters of Administration, which gives you the authority to perform functions such as accessing the decedent’s bank account and otherwise representing the decedent’s probate estate.
Contact Lamkin Elder Law to Become an Administrator of a New York Estate
The probate process is not always straightforward. It can get complex, and unnecessary delays are common. With proper preparation and sound legal advice, however, the process is manageable. Contact The Law Office of Andrew M. Lamkin, P.C., as soon in the process as possible to avoid the many potential pitfalls that characterize probate.
The Law Office of Andrew M. Lamkin, P.C. founder, Andrew M. Lamkin, focuses his practice entirely on elder law, estate planning, and related areas of law. He has been admitted to practice in both New York and New Jersey, and he is a member of the National Academy of Elder Law Attorneys (NAELA). Contact The Law Office of Andrew M. Lamkin, P.C., either online or by calling 516-605-0625, so that we can schedule an appointment to discuss your situation.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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