Public Administrator in New York: What Heirs Need to Know

By Albert Goodwin, Esq., Law Offices of Albert Goodwin. This page is general information about New York law, not legal advice for your situation.

If a relative died in New York and you have learned that the Public Administrator is handling the estate, you probably have three questions. Am I entitled to anything? How do I prove it? And what is this going to cost the estate before I see a dollar? This page answers those questions under Article 11 of the Surrogate's Court Procedure Act (SCPA) and the kinship rules in SCPA § 2225. For a general description of what any estate administrator does, see our page on estate administration in New York. This page is about the situation where the fiduciary is a government office and you are the family member on the outside trying to get in.

When the Public Administrator gets involved

The Public Administrator (often called the PA) is a public official, appointed by the Surrogate of the county, who administers estates when no eligible family member is available to do it. The PA is appointed in a limited set of situations:

• No known next of kin: The decedent died without a will and no spouse, child, parent, sibling, niece, nephew, aunt, uncle, or other distributee can be found.
• Only remote relatives: The closest living relatives are first cousins or more remote, or the identity of the distributees is unknown. In these cases the court rules require that the PA receive a citation in the proceeding, and the court will often appoint the PA rather than a cousin whose relationship has not yet been proved.
• Eligible relatives decline or are disqualified: A closer relative exists but renounces, is ineligible under SCPA § 707 (for example, a felony conviction, or a non-resident alien), or cannot be located. See administrators and executors with felony records.
• A will exists but no executor can serve: If the named executor and all alternates have died, renounced, or been disqualified, and no beneficiary petitions, the court may issue letters of administration c.t.a. (with the will annexed) to the PA. See administrator c.t.a.. The PA may also petition to probate a will under SCPA § 1402 when nobody else has done so.
• A fiduciary is removed mid-administration: If an executor or administrator dies or is removed and no successor steps forward, the PA may receive letters d.b.n. See administrator d.b.n..

Most PA cases start with a referral. When someone dies alone in an apartment, the police, the Office of Chief Medical Examiner, a hospital social worker, or a nursing home reports the death to the PA for that county. The PA secures the residence, changes the locks, and inventories the contents. If you are a family member who has been locked out, read access to an apartment after death.

The Public Administrator offices in New York

SCPA Article 11 (§ 1101 and following) creates a separate Public Administrator for each of the five counties within New York City. Each office has its own counsel, investigators, and accountants. The offices are located at or near the Surrogate's Court for each county:

• New York County (Manhattan): 31 Chambers Street, New York, NY 10007.
• Kings County (Brooklyn): 360 Adams Street, Brooklyn, NY 11201.
• Queens County: 88-11 Sutphin Boulevard, Jamaica, NY 11435.
• Bronx County: 851 Grand Concourse, Bronx, NY 10451.
• Richmond County (Staten Island): at the Richmond County Surrogate's Court, Staten Island, NY 10301.

Current telephone numbers and office hours for each borough are published on nyc.gov and on the individual county Public Administrator websites. Outside the City, Westchester, Nassau, Suffolk, and several other counties have their own Public Administrators appointed under the second part of Article 11 (SCPA § 1123). In counties without a Public Administrator, the county treasurer performs the same function under SCPA Article 12.

The five City offices are overseen by the Administrative Board for the Offices of the Public Administrators, created by SCPA § 1128. The Board issues guidelines that govern how the PA offices operate, including the guideline schedule for the fees charged by the PA's outside counsel. Those guidelines matter to you because they set the starting point for the legal fees that will come out of your relative's estate.

A common misconception is that the PA is funded entirely by the estates it handles. In the City, the Public Administrator and staff are salaried employees, and under SCPA § 1106 the statutory commissions the PA earns are collected for the benefit of the City rather than kept by the office. The estate still pays those commissions, along with counsel fees and vendor costs, before anything is distributed.

Your rights as a distributee once the PA has been appointed

The PA's appointment does not extinguish your inheritance. If you are a distributee under EPTL § 4-1.1, you remain entitled to your intestate share. The PA holds the estate as a fiduciary for the benefit of the people ultimately found to be the heirs. In practice, you have four rights that matter:

1. The right to seek letters yourself, if you have priority under SCPA § 1001.
2. The right to notice of the PA's accounting and distribution petitions, once you have appeared in the proceeding.
3. The right to prove kinship and collect your share, through the process described below.
4. The right to object to the PA's accounting, including the commissions, counsel fees, and vendor charges.

None of these rights are self-executing. The PA does not go looking for objections, and the court will not distribute to you until your relationship to the decedent is established on the record. The first step is to file a notice of appearance in the Surrogate's Court file and write to the PA's counsel identifying yourself and your claimed relationship.

Getting the PA to step aside: the SCPA § 1001 priority order

SCPA § 1001 lists who is entitled to letters of administration, in order: the surviving spouse, then children, then grandchildren, then the father or mother, then brothers and sisters, then any other distributee who is eligible to serve, with preference to the person taking the largest share. The Public Administrator comes after every eligible distributee. If you fall within that list and are eligible under SCPA § 707, you outrank the PA.

Before the PA is appointed: File a petition for letters of administration promptly. The PA will be cited and will generally not oppose a petition by a relative whose relationship and eligibility are documented. If the closest relatives are first cousins or more remote, the court will require more: an affidavit of a disinterested person establishing the family tree under 22 NYCRR 207.16, and sometimes a full kinship hearing before letters issue. See letters of administration and affidavits of heirship.

After the PA is appointed: You can petition to revoke the PA's letters under SCPA § 711 and have letters issued to you, or ask the PA to voluntarily account and turn the estate over. The PA will usually consent once your priority is shown, but it will first file an accounting for the period it served, and the estate will pay commissions and counsel fees for that period. The further along the PA is, the less is gained by substitution. If the PA has already sold the real property and is close to a final accounting, it is often cheaper to prove kinship and take distribution than to take over an administration that is nearly done.

If the PA has mishandled assets, delayed without reason, or sold property below value, the remedy is a compulsory accounting under SCPA § 2205 and objections to the account, not just a request that the PA step aside. For removal grounds generally, see removing an administrator.

Kinship proceedings under SCPA § 2225

This is the part of a PA estate that no other administration page on this site covers, and it is where most of the delay and expense occurs. When the PA cannot confirm who the heirs are, the court must decide the question in a kinship proceeding, usually in connection with the PA's final accounting. The Attorney General of New York appears in these proceedings because the State is the ultimate taker if no heirs are found.

What a claimant must prove

Each person claiming a share must establish, by a preponderance of the evidence, three things:

1. The claimant's own relationship to the decedent, link by link: for a first cousin, that means proving the decedent's parent and the claimant's parent were siblings, and proving the claimant's descent from that parent.
2. That no one in a closer degree survived the decedent. A cousin cannot take if the decedent left a child, parent, sibling, niece, or nephew, so the claimant must affirmatively rule those classes out.
3. The number of people in the claimant's class, so the court can fix each share. If there are eight first cousins, the court needs evidence of all eight, including the ones who are not before the court.

Remember the outer limit of New York intestacy. Under EPTL § 4-1.1, inheritance extends no further than the great-grandchildren of the decedent's grandparents (first cousins once removed), and that class takes only if no grandparent, aunt, uncle, or first cousin survived. Second cousins take nothing.

What evidence the court expects

The Surrogate's Court expects documents, not family lore. Useful evidence includes certified birth, marriage, and death certificates; baptismal and church records; census records; immigration and naturalization files; obituaries; cemetery records; and probate files of other relatives. Records from outside the United States must be properly certified and translated. Testimony from a disinterested witness who knew the family is often required to prove that no closer relatives existed. Hearings are typically held before a court attorney-referee, who issues a report the Surrogate then confirms or rejects.

The due-diligence bar and the three-year rule

SCPA § 2225 lets the court close the class of distributees when two conditions are met: at least three years have passed since the decedent's death, and a diligent and exhaustive search has been made without locating any other distributee. If both are shown, the court can find that no other heirs exist and distribute the entire estate to the claimants who have proved their status. Without such a finding, the court can only distribute the shares of the proven claimants and must hold back the rest.

The practical consequence is that a PA estate with cousins as heirs rarely closes in less than three years, even when everything goes smoothly. The three-year period runs from death, not from the PA's appointment, so a prompt start on documentation can mean distribution soon after the third anniversary rather than years later.

What happens to shares nobody has claimed

If the court cannot close the class, the unclaimed portion is paid into court under SCPA § 2222. In the City, the funds are deposited with the Commissioner of Finance; in other counties, with the county treasurer. A relative who later proves kinship can petition to withdraw the funds under SCPA § 2223. Funds that stay unclaimed are eventually transferred to the State Comptroller's Office of Unclaimed Funds, where they can still be claimed, but with more paperwork and a higher burden of proof than if the claim had been made in the Surrogate's Court.

How your attorney works with PA counsel

The PA's outside counsel does not represent you. Its job is to protect the estate and the PA, and in a kinship hearing it tests every claimant's proof. Your own attorney assembles the documentary chain, obtains the certified records, prepares the witness, and cross-examines competing claimants. Two warnings. First, the PA's counsel fees are paid from the estate, but your attorney's fees are paid by you, usually from your share, so ask about the fee arrangement before signing. Second, if an heir-search firm has contacted you offering to prove your claim in exchange for a percentage of your inheritance, have the contract reviewed before you sign it. Those agreements are enforceable in New York, but the court does review them, and a percentage that looked small when you expected nothing can be a large sum once the share is fixed.

What the Public Administrator costs the estate

The PA charges the estate three ways, and all three are set by statute or by the Administrative Board guidelines. You are entitled to see each one in the accounting and to object if it is wrong.

1. Statutory commissions (SCPA § 2307). The PA receives the same commissions as any administrator, calculated on the value of assets received and paid out:

• 5 percent of the first $100,000
• 4 percent of the next $200,000
• 3 percent of the next $700,000
• 2.5 percent of the next $4,000,000
• 2 percent of amounts above $5,000,000

2. Administrative fee (SCPA § 1106). In addition to commissions, the statute allows the PA an administrative charge of one percent of the gross value of the estate to cover the expenses of the office.

3. Counsel fees (SCPA § 1106 and the Administrative Board guidelines). The PA's outside attorneys are paid from the estate. The Administrative Board's guidelines set a presumptive fee of six percent of the first $750,000 of the gross estate, with lower percentages on larger amounts, for ordinary legal services. Counsel may ask for additional compensation for litigation, including contested kinship hearings. The guideline is a starting point, not an entitlement. The Surrogate must still find the fee reasonable, may require time records, and may reduce it.

On top of these, the estate pays accountants, real estate brokers, auctioneers, appraisers, locksmiths, storage, and any genealogist the PA retains.

A worked example: a $500,000 estate

• Commission on $500,000: $5,000 (first $100,000) + $8,000 (next $200,000) + $6,000 (next $200,000) = $19,000
• Administrative fee at one percent: $5,000
• Counsel fee at the six percent guideline: $30,000
• Total before vendors: $54,000, or about 10.8 percent of the estate

A family member serving as administrator would be entitled to the same $19,000 commission but can waive it, pays no one-percent administrative fee, and can negotiate an hourly or flat legal fee for an uncontested administration. That difference is why relatives with priority usually prefer to serve, and why relatives without priority should at least watch the accounting closely.

How to object to the charges

The PA must account before distributing. When you receive the citation on the accounting, you have the right to file written objections to any item: a commission computed on the wrong base, a counsel fee that exceeds the guideline without justification, a sale of the apartment below market, or a vendor charge with no supporting invoice. Objections must be filed by the return date on the citation, so do not let that date pass while you gather documents. Our accounting proceedings page explains the process in more detail.

What to expect on timing

A PA estate with known heirs and no real property can close in roughly the same time as a private administration, often one to two years. A PA estate where the heirs are cousins, the decedent owned a co-op or house, and records must come from abroad commonly takes three to five years, driven by the § 2225 three-year rule, the real estate sale, and the kinship hearing calendar. You will not speed that up by calling the PA office repeatedly. You will speed it up by delivering a complete, certified family tree to the PA's counsel early, so that your claim is unopposed when the accounting is filed.

Avoiding the Public Administrator in your own planning

For your own estate, a will naming an executor and at least two alternates is the simplest way to keep the PA out, and a revocable trust with a named successor trustee avoids the Surrogate's Court for trust assets entirely. See wills in New York and avoiding probate in New York. Tell the people you name that you named them, and tell them where the original document is kept.

Frequently asked questions

The PA will not tell me anything about my cousin's estate. Is that legal?

Yes. Until your kinship is established, you are a claimant, not a recognized party, and the PA is not obliged to share the inventory with you. Filing a notice of appearance in the Surrogate's Court file and submitting your documentation to PA counsel changes your status and gets you notice of the accounting.

I am a niece. Why was the PA appointed instead of me?

Usually because nobody told the court you existed. A niece or nephew outranks the PA under SCPA § 1001. You can petition to revoke the PA's letters under SCPA § 711 and have letters issued to you, though the estate will pay the PA's commissions and counsel fees for the period it served.

Does the PA keep the commissions?

Not personally. The Public Administrator is a salaried official, and in the City the commissions are collected for the benefit of the City under SCPA § 1106. The estate still pays them.

Can I recover money that was already deposited with the Commissioner of Finance?

Yes. A distributee who proves kinship can petition under SCPA § 2223 to withdraw funds paid into court under § 2222. If the funds have since been transferred to the State Comptroller, the claim is made through the Office of Unclaimed Funds.

Is a kinship hearing required if there is only one cousin?

The court still needs proof that there is only one. Proving the absence of closer relatives and the size of the class is required regardless of how many claimants appear, although an uncontested claim with complete documentation may be resolved on papers without a full hearing.

How we can help

The Law Offices of Albert Goodwin represents distributees and kinship claimants in Public Administrator estates in all five boroughs and on Long Island. We prepare petitions for letters under SCPA § 1001, applications to revoke the PA's letters, kinship proofs under SCPA § 2225, and objections to PA accountings and counsel fees. We have offices in Manhattan, Brooklyn, and Queens. Call 212-233-1233 or email [email protected] to discuss your relative's estate.