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When someone dies, families often ask, “Who takes charge of the estate?” The answer depends on whether there is a will, the estate’s value, and the closest living relatives.
Executor
If there’s a will, the nominated executor is the person in charge of the estate after death. The nominated executor files the petition for probate with the court to validate the will. Once the court admits the will to probate, the nominated executor is then appointed and given powers to administer the decedent’s estate. This involves gathering assets, selling assets, paying debts, and distributing the net estate to the beneficiaries.
Administrator
If there’s no will or the will is denied probate, the court appoints an administrator to be in-charge of the decedent’s estate. The following can file the petition for administration, in order of priority:
- Surviving spouse
- Children
- Grandchildren
- Either parent
- Brothers or sisters
Administrator C.T.A.
If the executor (including successor executors) named in the will is not qualified to act, either by incapacity, death, resignation, court removal or other reason, the court appoints an administrator C.T.A. who becomes in charge of the decedent’s estate. The following can file a petition to be appointed as administrator C.T.A. in order of priority:
- The sole beneficiary or if he is dead, his fiduciary
- One or more of the residuary beneficiaries, or if any be dead, to their fiduciary
- Anyone interested in the estate, or if dead, to their fiduciary
- If no one qualifies, the court appoints a public administrator
Sometimes, when the nominated executor lives outside of the US, our lawyers co-petition with the nominated executors as administrators C.T.A. in order to comply with rules that the personal representative must be a New York resident subject to New Your courts’ jurisdiction.
Public Administrator
When the decedent dies without a will and his closest living relatives are his cousins, the court appoints the Public Administrator to be the person in charge of the decedent’s estate.
Voluntary Administrator
When the decedent dies with or without a will but leaves only personal property (and no real estate) worth less than $50,000, the court appoints a voluntary administrator who is the person-in-charge of the small estate. To initiate the proceeding, the voluntary administrator files the small estate affidavit petition together with supporting documents. If there is no will, it’s the closest relative. If there is a will, it’s the nominated executor.
Trustee
In most revocable trusts where the decedent is the grantor, trustee, and beneficiary, when the decedent dies, the successor trustee becomes the person in-charge of the trust estate. Trust estate refers to all property transferred to the trustee specifically for purposes of the trust. The transfer of assets from the deceased trustee to the successor trustee is usually fast and simply requires an affidavit from the trustee together with some supporting documents, without need of court interference.
Probate Estate vs. Non-Probate Estate vs. Trust Estate
The administrator, executor, administrator C.T.A., voluntary administrator, and public administrator are all appointed by the court to handle the decedent’s probate estate. The probate estate is the total value of the decedent’s assets that are subject to probate administration. Usually, these are real or personal assets that the decedent solely owns in his own name, he has an interest in as a tenant-in-common, or without a designated beneficiary.
The non-probate estate, on the other hand, are assets that do not need to undergo probate administration (i.e., legal proceedings) in order to be transferred after death. These are assets the decedent owns jointly with rights of survivorship, under a trust, or with a designated beneficiary. Examples are payable-on-death, transfer-on-death, or Totten trust accounts, insurance policies or IRAs with a designated beneficiary, and trust assets.
The trust estate is considered non-probate estate. When the decedent-grantor (who is also usually the trustee and beneficiary in revocable trusts) dies, property is transferred to the successor trustee for the benefit of the successor beneficiaries without going through legal proceedings.
Determining the kind of person in charge of the estate after the decedent’s death will dictate the type of petition to be filed. Different rules in filing will apply given the different persons to be in charge of the estate. Having an experienced probate attorney to guide you through the process will minimize costly mistakes and delays. we at the Law Offices of Albert Goodwin are here for you. We are located in Midtown Manhattan in New York City. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
