What are my Rights if my Relative Died Without a Will?
Barbara, a widow, died without a Will. She was survived by her two children, Jonathan and Lisa. Barbara never executed a Last Will and Testament. She never had the opportunity to nominate someone to serve as Executor of her estate after her death. Barbara’s children never got along. Following her death, Barbara’s children had to figure out which of them should serve as administrator of her estate.
Shortly after Barbara died without a Will, Jonathan hired an attorney to commence an administration proceeding in Surrogate’s Court. His attorney prepared a Petition for Letters of Administration and filed it with the Court. Such Letters, if issued to Jonathan by the Court, would allow him to collect Barbara’s assets, pay her taxes and bills, and distribute her property to her next of kin. Jonathan’s attorney then sent Lisa, Barbara’s only other next of kin, a Waiver and Renunciation (“Waiver”) to serve as Administrator. Lisa did not sign the Waiver.
Not hearing from Lisa, Jonathan’s attorney then served her with a copy of the Citation. The Citation gave Lisa notice of the administration proceeding and requested her presence in Surrogate’s Court. Lisa does not agree to having Jonathan serve as Administrator. As such, Lisa should appear on the return date and consider filing objections.
Filing Objections When Relative Died Without a Will
Lisa should prepare Verified Objections to the Petition for Administration. In these Objections, Lisa should set forth all of the reasons that she has for not wanting Jonathan to serve. SCPA 707 enumerates the reasons that at person is not eligible to serve as an Administrator.
SCPA 707 provides that a person will not be eligible to serve if he or she is:
a non-domiciliary noncitizen except one who is a foreign guardian as provided in subdivision four of section one thousand seven hundred sixteen of this chapter, or one who shall serve with one or more co-fiduciaries, at least one of whom is resident in this state.
one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.
SCPA 707 also now provides that a person MAY not be eligible if:
they are unable to read and write the English language; or
are convicted of a felony whose crime may be adverse to the welfare of the estate, including but not limited to, crimes such as embezzlement or any crime where there was a misappropriation of money or a breach of fiduciary duty.
Surrogate Courts Procedures Act section 707 and section 711 set forth grounds upon which a person can be found unfit to serve as a fiduciary of an estate, including if that person is a felon, an incompetent, a person under the age of 18, or someone who suffers from substance abuse. If Jonathan falls into any of those categories, then Lisa should spell them out for the Court.
Going back to our example, perhaps Jonathan has a criminal record or has stolen from Lisa in the past. Perhaps he has abused his fiduciary duties in the past or is otherwise unfit to serve.
Lisa should enumerate the objections, send a copy of the Objections to Jonathan’s attorney and file the originals with the Court.
Practical Point: There is a $75 filing fee for objections. Objections MUST be VERIFIED, which means they must include a verification page and be signed before a notary.
Filing a Cross Petition when Relative Died Without a Will
The next step is to prepare a Cross-Petition for Letters of Administration. Except for two tiny technical details, a Cross Petition is no different from a regular petition for Administration. (The two technical details are that the words “Cross-Petition” should be at the top of the page and the index number will have the same index number as the regular petition but be followed with an “/a.”)
Lisa should file the Cross Petition with the Court and obtain a Citation and serve Jonathan with a copy of the Citation. (Note: there is a filing fee for the administration petition. The fee depends on the size of the estate).
What Happens at the Return Date of Citation?
At the return date of Citation, Jonathan and Lisa (or their attorneys) should appear in Court. If jurisdiction is complete, then the matter will likely be set down for a conference. The conference can either take place that same day, or, if the calendar is packed, then the Judge will advise the parties that a Notice of conference will be sent in the mail. Jonathan and Lisa (or their attorneys) should attend the conference on the date set forth in the Notice.
What Happens at the Court Conference?
The purpose of the Court Conference is for the parties to sit down and evaluate a potential resolution. If a resolution cannot be amicably reached, then the parties will usually agree to a discovery schedule. The purpose of the discovery schedule is to allow the parties time to gather evidence in support of their claims that they should be the administrator, or, conversely, that the other party should not be the administrator.
After discovery is complete, the matter is set down for a hearing to determine who should be the administrator.
What are some Alternatives to a Contested Administration?
At times when a person died without a Will, it may be more economical to just agree to serve as co-administrators with a bond than to go forward with a contested administration. Alternatively, it may make sense to allow the Public Administrator to administer the estate. Note that the Public Administrator may take longer. The Public Administrator usually also gets statutory fees and commissions, as well as fees for their attorneys and this will reduce the size of the estate available for distribution. It may also make sense to just come to a stipulation of settlement surrounding rights and obligations of the fiduciaries.
I have represented individuals in connection with the disqualification of an executor or administrator in Surrogate’s Court. Please feel free to contact me to discuss your situation.
Additional resources provided by the author
For more information, please contact Guardianship, probate and estate planning attorney Regina Kiperman:
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