When persons die leaving a surviving spouse, most assume that the spouse is automatically the executor of the estate. However, this is not always the case. A spouse is not automatically the executor of the estate.
What is an executor?
An executor of an estate is the person nominated by the deceased person in his will to manage his estate and distribute his assets after the deceased person dies. The following must all be complied with for the appointment of an executor:
- the deceased person dies with a will;
- the deceased person nominates an executor in the will;
- the will is admitted to probate by the court; and
- the nominated executor in the will is eligible, qualifies, and is appointed by the court.
In the case of the spouse, the spouse cannot automatically be executor of the estate because:
- the surviving spouse has to be nominated by the deceased spouse in the will.
- the deceased spouse’s will must be admitted to probate; and
- the surviving spouse must be eligible, qualified, and appointed by the court as executor.
What is an administrator?
An administrator, on the other hand, is the person stipulated by law to manage the estate of the deceased person when he dies without a will. Usually, the administrator is the surviving spouse, but the spouse is not automatically the administrator of the estate.
To be administrator, the spouse must petition the court for the issuance of letters of administration. Only when the court appoints the spouse as administrator can the spouse begin performing the duties of such office. Thus, the spouse also cannot automatically be the administrator of an estate. The spouse needs to get a court order to be an administrator.
Based on above, for a spouse to be executor or administrator of an estate, the spouse needs a court order. This court order can only be obtained by filing the proper petition with the court. The spouse cannot automatically be an executor or administrator of an estate.
Does a spouse automatically inherit everything?
Even if the spouse is executor or administrator, the spouse does not automatically inherit everything.
When the deceased person dies with a will, the spouse can only get what the will says the spouse will get. In most states, if the disposition in the will is lower than the spousal elective share, the spouse can elect to receive instead the elective share. In New York, the spouse’s elective share is $50,000 or 1/3 of the net estate, whichever is higher.
When the deceased person dies without a will, state laws provide who will inherit. Usually, it is the surviving spouse and the children. In some states such as Florida, it is only the surviving spouse who will inherit, if the deceased person had no other children other than the children with the surviving spouse.
Settlement of the estate may be complex depending on the value of the estate. Conflicts may also arise among family members. It is wise to seek the advice of a probate attorney to ensure you are apprised of your options. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.