When a person dies, their assets must be distributed. The distribution process varies based on whether the person had a valid will and the size of their estate. If the person who died, legally known as the decedent, had a will, an executor is responsible for administering the estate. If the decedent died without a will or their estate was valued at $50,000 or less, an administrator is responsible for the estate.
Managing the affairs of a loved one after their passing is an emotionally taxing process. Dealing with complex state laws regarding inheritance and asset transfer while you are mourning can exacerbate an already painful time. Whether your loved ones left you clear instructions and you need support in executing their wishes or you are trying to manage an unexpected loss with little guidance, the Law Office of Andrew M. Lamkin, P.C., can help. Contact us today.
What Does It Mean to Die Testate vs. Intestate?
At the root of wondering what is the difference between an executor and an administrator in New York lies a second question: What does it mean to die testate or intestate? In short, if you die testate, you die with a valid will. If you die intestate, you die without a valid will.
When you die testate, your executor administers your estate. You can direct who should receive your property and in what percentages. Anyone legally able to hold property can be named in a will.
If you die intestate, an administrator manages your estate. The administrator must distribute your property according to New York’s intestacy laws. Under these laws, your surviving family members inherit in order of priority. The law favors your spouse and children, then moves down the line to your parents, siblings, grandparents, and their descendants.
What Is an Executor vs. an Administrator?
Executors and administrators serve the same primary role: act as the estate’s fiduciary. As a fiduciary, the executor or administrator is legally obligated to act in the estate’s best interests. The fiduciary must:
- Identify, collect, and appraise the decedent’s assets;
- Pay the debts and estate expenses of the decedent; and
- Transfer the estate property under the terms of the will or intestacy law.
These duties look different for administrators and executors, but the essential nature of the fiduciary’s role is the same.
Who Serves as an Executor?
When you create a will, you declare who you want to be your executor. You can designate almost anyone as your executor as long as they are:
- 18 or older;
- Legally competent; and
- A New York resident or have a co-fiduciary who is a resident of New York.
Those with a history of substance abuse or dishonesty and those who do not understand the role cannot serve as executors. The court can also declare a person ineligible to serve as an executor if the person cannot read and write in English or has a felony conviction that indicates they will not serve the fiduciary role well.
What Does an Executor Do?
After a person dies, the executor listed in the decedent’s will must file several documents in the Surrogate’s Court of the county where the decedent lived at the time they died and held a primary residence:
- The will,
- A death certificate, and
- A probate petition with supporting documents.
The probate petition must list all those entitled to take a portion of the estate under intestacy law, known as distributees. The executor must ensure each distributee receives notice of the probated will through a citation. Distributees may dispute the appointment of the executor or consent to the executor administering the estate.
In addition, the executor must ensure all beneficiaries, meaning those entitled to something in the will, are notified of the proceeding and receive what was left to them.
Who Serves as an Administrator?
A decedent who dies intestate will have an administrator appointed in accordance with the law. From highest to lowest priority, that list includes your:
- Spouse,
- Children,
- Grandchildren,
- Parents, and
- Siblings.
If the decedent does not have a relative that qualifies but does have relatives entitled to take part of the estate—typically a grandparent, aunt, uncle, or first cousin—extra rules come into play, such as:
- If one person is entitled to a larger share than the others, that person is appointed administrator;
- If multiple people are entitled to equal shares, the court can appoint multiple administrators; or
- If the only people entitled to shares are descendants of grandparents on only one side, the county public administrator or chief financial officer is appointed administrator.
When no one qualifies to serve as administrator under the specific provisions of the law, the county public administrator or chief financial officer has appointment priority.
What Does an Administrator Do?
After a person dies, the administrator must file several documents in the Surrogate’s Court where the decedent primarily lived:
- A copy of the funeral bill,
- A death certificate, and
- A petition for letters of administration with supporting documents.
The petition must list all the decedent’s distributees. Each distributee must receive notice of the proceedings through a citation. Distributees may dispute or consent to the appointment of the administrator. To the best of their ability, the administrator should also list the decedent’s debts and assets at the time of death.
Executor and Administrator Compared
In many ways, executors and administrators do the same thing. The difference between an executor and an administrator lies in whether the decedent did or did not have a will and the steps required of each to administer the estate.
When a decedent creates a will, they have power over who serves as the executor of their estate and can ensure it is someone who will do justice to the role. Even when the decedent dies intestate, the law protects the estate from improper administration through penalties for failing to follow a fiduciary duty and, when appropriate, the imposition of a bond on an appointed fiduciary.
Finally, although an estate usually has either an administrator or an executor, when the decedent has a will but their estate is valued at $50,000 or less, the estate may have both. Almost universally, these roles are filled by the same person.
Contact an Experienced Wills and Estates Lawyer
Laws surrounding estate administration can get dense and hard to follow—especially those concerning who is entitled to a share of an estate under intestate succession. Whether you are trying to work through those laws while mourning a loss or want to ensure you leave a comprehensive estate plan to minimize stress on your loved ones when you pass, the Law Offices of Andrew M. Lamkin, P.C., can help. We have nearly two decades of experience in estate planning and administration. Contact us today for a free consultation to learn more.
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.
Loading...