Who Are The Parties To An Estate?

When a loved one dies, the sum of property left by that person to be passed on through probate is called that person’s estate. Knowing who the parties are to an estate are required for the proposed executor or administrator to proceed with the petition for probate or administration.

Generally, the parties to an estate, aside from the deceased, are the heirs-at-law (or distributees), creditors, the fiduciary, and for those who died with a will, the beneficiaries.

The deceased

The deceased, although not technically a party to the estate (because he is already deed), is the reason for the estate. If the deceased left a will, he is called a testator.

The distributees (heirs-at-law)

Regardless of whether the deceased died with or without a will, the most important parties in the estate are the deceased’s distributees or heirs-at-law. They are the most important parties because without notice to them, the petition for probate or administration cannot proceed.

Who are the distributees? They are the persons entitled to inherit if the deceased died without a will. Who the distributees are depend on who survived the deceased. In New York, the distributees are enumerated in EPTL § 4-1.1:

If decedent is survived by: The following persons shall receive decedent’s estate (the distributees):
Spouse and issue (children and their descendants) $50,000 plus ½ to spouse, and balance to children or children’s descendants by representation
Spouse and no issue Everything to the spouse
Issue and no spouse Everything to the issue by representation
No spouse, no issue Everything to the surviving parents
No spouse, issue, or parents Everything to the issue of the parents by representation
No spouse, issue, parents, or parents’ issue To the grandparents or issue of grandparents by representation, ½ each to the paternal and maternal side

In the petition for probate or administration, the names of the distributees and their addresses need to be listed. The petition cannot proceed if the distributees are not notified. If the distributees consent to the petition, they can execute waivers and consents, agreeing to the reliefs requested in the petition. If these distributees do not execute these waivers and consents, the court needs to issue a citation to them, directing them to appear before the court to show cause why the reliefs stated in the petition for probate or administration should not be granted. Only when all distributees execute waivers and consents or are issued citations (and appear or do not appear in the hearing) can the petition proceed.

In a petition for administration, the distributees are the ones who will inherit the estate of the deceased. In a petition for probate, the distributees will not inherit from the estate of the deceased if they are not named as beneficiaries in the will. However, these distributees are entitled to object and contest to the admission of the will to probate.

In our experience, when some distributees do not execute waivers and consents, these can lead to a delay in the appointment of an executor or administrator. For this reason, we can file petition for preliminary letters to allow the executor or administrator to manage the estate of the deceased while the petition is pending.

Sometimes, a relative (such as a sibling) will file a petition for administration, misrepresenting to the court that the deceased died without a spouse or children, allowing that relative to be appointed administrator and to inherit the estate of the deceased. When this happens, we have also filed an urgent application for a temporary restraining order to restrain the appointed administrator from performing the duties of his office and a petition to remove the administrator on the ground of false suggestion of a material fact in the petition.

The fiduciary

Another important party to an estate is the fiduciary. The fiduciary can either be the executor or administrator, depending on whether the deceased died with or without a will.

If the deceased died with a will, the deceased will usually nominate an executor in the will, the person he would like to manage his estate after his death.

If the deceased died without a will, the person appointed administrator depends on the order of priority under SCPA § 1001 in the following order:

  1. the surviving spouse
  2. the children
  3. the grandchildren
  4. the father or mother
  5. the brothers or sisters
  6. 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

Under this priority, the presence of one class excludes the other. For example, if at least one of the children are alive, they are given preference over the grandchildren or the parent in being granted letters of administration. If the spouse is alive, the spouse is given preference over the children in being appointed as administrator.

Other qualifications of the fiduciary

Aside from being nominated in the will or being a priority class for administrator under SCPA § 1001, the proposed executor or administrator must also be eligible under the following criteria provided in SCPA § 707:

  1. must not be a minor
  2. must not be an incompetent (or must be of sound mind)
  3. must be a resident of New York (or if a non-resident, must have a co-executor or co-administrator who is a resident of New York)
  4. must not be convicted of any felony
  5. must not have a history of substance abuse, dishonesty, improvidence, want of understanding, or otherwise unfit for the execution of the office
  6. discretionary on the part of the court: must be able to read and write in the English language

The creditors

In New York, creditors are considered interested parties entitled to present a will for probate under SCPA § 1402. Creditors, however, are not entitled to notice in a petition for probate or administration. Creditors are assumed to exercise ordinary diligence by sending regular bills to the deceased’s address, and this is one way for the executor or administrator to know who the creditors of the estate are.

Under SCPA § 1802, creditors should present their claims within seven (7) months from the date the letters of testamentary or administration were first issued (including the issuance of temporary and preliminary letters). If claims are not presented within this 7-month period, the executor or administrator is not liable for assets that have, in good faith, been paid to other creditors or distributed to beneficiaries.

In New York, the creditor’s claim must comply with the requirements under SCPA § 1803:

  • claim must be in writing
  • claim must contain a statement of facts upon which it is based and the amount
  • served personally to fiduciary or by certified mail return receipt requested
  • optional: the fiduciary may require submission of affidavit

For these reasons, distributions are usually made to the distributees or beneficiaries seven months after the executor or administrator is appointed.

The beneficiaries

For persons who died with a will, beneficiaries are parties to the estate. Beneficiaries are the persons designated in the will who are to receive specific real or personal property, cash, or the remainder of the estate.

Generally, a beneficiary who inherits specific real property is called a devisee, while a beneficiary who inherits specific personal property or cash is called a legatee. If the beneficiary will inherit the remainder of the estate after distributions to devisees and legatees, they are called residuary beneficiaries.

Other possible parties

Aside from the deceased, fiduciary, distributees, beneficiaries, and creditors, there may be additional parties to the estate depending on the circumstances of each case, such as the trustee and the guardian.


If the deceased left a will creating a testamentary trust, the deceased would have designated a trustee to administer the testamentary trust. The trustee may or may not be the executor.


When the deceased foresees that he might pass away with minor beneficiaries, he could name his preferred guardians for the beneficiaries. When these nominated guardians are approved by the Surrogate’s Court, they become the legal guardians of the minors.

Oftentimes, when a distributee is a minor or mentally incompetent (for example, a surviving spouse who has dementia), the court requires that guardianship proceedings be instituted first for the appointment of a guardian for citation to issue. Minor or mentally incompetent distributees cannot execute waivers and consents and cannot receive citations issued by the court. For this reason, a legal guardian should first be appointed for these distributees to be able to receive the citation.

Should you have any questions based on your status as party to an estate, 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].

Attorney Albert Goodwin

Law Offices of
Albert Goodwin, PLLC
31 W 34 Str, Suite 7058
New York, NY 10001
[email protected]