An Administrator of an Estate Without a Will

If your loved one died without a will, then you would need to have an administrator of an estate without a will appointed in order to access your loved one’s assets.

Who is entitled to be appointed as administrator of an estate without a will

The administrator of an estate without a will is appointed by the court by first filing a petition for letters of administration. Under SCPA § 1001, the petition for letters of administration should be filed by the following, in order of priority: (a) the surviving spouse; (b) the children; (c) the grandchildren; (d) the father or mother; (e) the brothers or sisters; and, (f) any other persons who are distributees and who are eligible and qualify, preference being given to the person entitled to the largest share in the estate.

For example, you died without a will, leaving your spouse, children, and mother alive. Your spouse will be the person entitled to file the petition for letters of administration.

What if you died only with your children and mother alive? Your children have a preference in filing the petition for letters of administration.

What if you died without any spouse or children, leaving your parents and siblings only? Your parents would have priority over your siblings in filing a petition for letters of administration.

If you have an issue with an administrator of an estate without a will, we at the Law Offices of Albert Goodwin are here for you. You can call us at 212-233-1233 or send us an email at [email protected].

Shares of distributees in the administration of an estate without a will

Since the decedent did not leave a will, state law provides for the distribution of the decedent’s assets to the heirs in an administration of an estate. The administrator has no choice or discretion to whom the assets will be distributed.

Under EPTL § 4-1.1, a person’s assets will be distributed in the following manner if he died without a will. If a decedent is survived by:

1. A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation.
2. A spouse and no issue, the whole to the spouse.
3. Issue and no spouse, the whole to the issue, by representation.
4. One or both parents, and no spouse and no issue, the whole to the surviving parent or parents.
5. Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.
6. (6) One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving maternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, the issue of grandparents shall not include issue more remote than grandchildren of such grandparents.
7. Great-grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of grandparents or grandchildren of grandparents, one-half to the great-grandchildren of the paternal grandparents, per capita, and the other one-half to the great-grandchildren of the maternal grandparents, per capita; provided that if the decedent was not survived by great-grandchildren of grandparents on one side, the whole to the great-grandchildren of grandparents on the other side, in the same manner as the one-half.

Following these rules, we go back to the example above where you died without a will with $100,000 in net assets, leaving your spouse, children, and mother alive. How much will each get? In this case, your spouse will get $75,000 ($50,000 plus ½ of the residue) and the remaining 25,000 (1/2 of the residue) will be shared by the children equally. Your mother will not get anything.

What if you died only with your children and mother alive with $100,000 in net assets? Your children get the entire $100,000 leaving nothing for your mother.

What if you died without any spouse or children, leaving your parents and siblings only? Your parents get the entire $100,000, leaving nothing for your siblings.

It’s quite simple when you only have one family. It becomes more complicated for blended families.

For example, you just got married to your new wife for less than a year. Your previous marriage lasted 20 years where you had three children, all of who are almost adults already. And then you died without a will. Under New York law, your new spouse of less than a year has a preference in becoming appointed as administrator. She will get $75,000 of the $100,000 net estate, while your three children will only get $25,000, or $8333.33 each. Does it seem fair?

Because some people might find an administrator’s distribution of estate without a will unfair, they resort to executing wills and trusts (especially in blended families) to ensure and secure their children from their new spouses.

An administrator of an estate without a will has a fiduciary duty to ensure that the distributees get their share of the estate. However, the administrator has to follow the law in the distribution. For example, no distribution must be made without paying estate debts and taxes first. If the administrator distributes without payment of debts, the administrator may be held personally liable.

The administration of an estate can be complex, and it is important to be guided by an estates lawyer in filing for a petition. We have represented many eligible administrators in filing their petition for letters of administration. Should you need assistance regarding an administrator of an estate without a will, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].