Who Gets the Preference for Serving as the Administrator When There Is No Will?
One of the many things that can make an estate with a will easier to deal with than an intestate estate is that a will would name an executor who would then be the one to handle the estate. In an intestate estate, there isn’t a will that names a specific person, meaning that who is named administrator must be named by the Surrogate’s Court in accordance with New York law. Who can serve as an administrator of an intestate estate depends on the circumstances of each case, meaning that one of the first calls you should make is to a New York estate attorney to help you determine who the best choice would be to act as administrator.
New York law in Surrogate’s Court Procedure Act § 1001 sets forth who has priority when it comes to who would serve as administrator. In nearly every instance, the person who would act as administrator would depend on a number of factors, such as the age of the decedent or the ability of a potential administrator to serve according to state law, such as could be the important if the potential administrator would be unable to serve because they are a felon or found incompetent by a court. The order of preference for each family member who could serve as administrator is listed as follows:
1. The surviving spouse
2. Adult children
3. Adult grandchildren
5. Adult siblings
6. Others who would have the largest distribution under the estate
No two cases are alike, meaning that who the potential administrator is could vary widely from case to case. For example, if a child dies and leaves behind property in the form of proceeds from a personal injury lawsuit, it would be likely that one of the child’s parents would have to represent the estate in Surrogate’s Court. On the other hand, if the surviving spouse has been found to be mentally incompetent because of dementia, they would be skipped in favor of an adult child or possibly even an adult grandchild.
Where the priority of who can become the administrator can is even more complicated in cases where there is no one under the initial part of the law who can serve, such as might be the case with someone who is incompetent and there are no other surviving heirs under state law. In such a case, other family members, such as grandparents, aunts, uncles or cousins may have to serve as the administrator or, in the worst case, a public administrator would have to be appointed.
The best way to make sure that the process of naming an administrator goes smoothly is to have a New York City estate attorney working with you to be sure that the right person is named. While in many cases, choosing the administrator may not be that difficult, in others it could be complicated, especially if there appear to be multiple qualified parties. Be sure that you have proper counsel so that you are sure the proper party is named the administrator. Call the Law Offices of Albert Goodwin at (212) 233-1233.