Roles of Executors and Administrators of a NYC Estate
Allison’s father, Kenneth, a Brooklyn resident, died in March of 2018. Kenneth was a widower, but survived by his three (3) children, Allison, John, and Nathan. In his Last Will and Testament, he named Allison as his executor. Based on Allison’s conversations with her father during his lifetime, she knows that Kenneth’s probate estate is worth more than Thirty Thousand dollars ($30,000). She wants to commence a proceeding in Court to probate her father’s Will and have executors appointed. What kind of letters should she seek from the court?
When a person dies (otherwise known as the “decedent”), one or more fiduciaries may be appointed to administer the decedent’s estate. Understanding the roles and powers of the different types of fiduciaries is crucial before the petitioner (that is, the person filing a petition with the Surrogate’s Court requesting that a specifically named individual or entity be appointed as the fiduciary of the estate) can prepare and file the petition with the court. The type of fiduciary the court appoints will depend on various factors, including the petitioner’s relationship to the decedent, whether the decedent had a will when he/she died, whether a fiduciary has already been appointed, whether the decedent was involved in any unresolved litigation at the time of her death (or the decedent’s estate is currently involved in litigation), and even the size of the estate.
- What is an Executor?
When a decedent dies with a will, the decedent is said to have died testate. Generally in this case, the individual (or individuals) named as Executor in the will will commence a probate proceeding to request that the court admit the will to probate and appoint that individual as the Executor of the Estate. If the court admits the will to probate, it will issue Letters Testamentary to the Executor. Here, Allison should petition for Letters Testamentary, since she is named as Executor of her father’s estate.
Letters Testamentary grant a wide range of powers to the Executor. Among these powers are powers to collect estate assets, open an estate account and transfer the decedent’s funds into such account, pay decedent’s taxes and outstanding bills, sell property not specifically disposed of in the will, invest and reinvest the estate assets, and administer the decedent’s property in accordance with the will.
Wills generally name specific individuals to act as primary and successor fiduciaries, provide specific instructions on how to administer the decedent’s assets and pay the estate taxes and administration expenses, and set forth a list of the fiduciaries’ powers. The Executor must read the will thoroughly and act in accordance with the will. Where the Executor believes that certain provisions of the will are not in the best interests of the estate, he should consult his attorney. (Note that the Executor often can petition the court for additional powers. For example, I mentioned that an Executor can sell property that is not specifically disposed of in the will without court order. The Executor can commence a proceeding in the Surrogate’s Court to request permission to sell specifically disposed of property. The Executor should review the the will and see how much discretion he has to perform certain actions.)
- What is an Administrator?
What if Kenneth died without a will? He would have been deemed to have died intestate. SCPA § 1001 sets forth a hierarchy of persons who can petition to become administrator of an intestate estate. For example, if the decedent is survived by a spouse, the spouse can petition for letters, and if there is no spouse or if the spouse refuses to act, the children may act as Administrator. (The list continues.) Here, Kenneth is survived only by his three children, so any of his three children can act as Administrator, as long as they are not otherwise ineligible. (Under SCPA § 707, which applies to all fiduciaries, such as Executors and Administrators, a person is not eligible to act as a fiduciary if that person is under 18 years of age, is incompetent, is a non-domiciliary alien (with some exceptions), is a felon, or is a person who is disqualified because of “substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.”
If the court appoints someone as Administrator, it will issue Letters of Administration to the Administrator.
The powers and duties of an Administrator are mostly the same as those of an Executor. One major difference is that while an Executor administers the estate mainly in accordance with the decedent’s will, the Administrator administers the estate in accordance with EPTL § 4-1.1, which provides the scheme for administration of an intestate estate.
- What is a Preliminary Executor or Temporary Administrator?
What might Allison do if she knew that one of her siblings was planning to contest the will? Allison might want to file an Application for Preliminary Letters Testamentary when she files the Probate Petition.
A petition for preliminary letters is filed either simultaneously with the petition for full letters or after the petition for full letters is filed. Generally, Preliminary Letters Testamentary or Temporary Letters of Administration are requested where the fiduciary anticipates that full letters will not be issued for a long time but there is urgency for the petitioner to act. Examples are where the petitioner expects that someone will contest the decedent’s will or expects that the court will appoint fiduciaries to represent the interests of a minor or an incapacitated person. (These appointed fiduciaries are known as Guardians ad Litem and are appointed to evaluate the needs of the minor or incapacitated person and make sure that their interests are being properly represented.)
Preliminary Letters allow the Preliminary Executor or Temporary Administrator to do everything that an Executor or Administrator with full letters can do EXCEPT administer the decedent’s estate. Full letters must be granted before the fiduciary can administer estate assets. Even though Preliminary Executors and Preliminary Administrators cannot distribute estate assets, Preliminary Letters may prove useful where the Preliminary Executor or Preliminary Administrator must pay taxes and file tax returns, pay administrative expenses, communicate with financial institutions that are in possession of the decedent’s assets, collect estate assets, and sell estate assets that are not specifically disposed of in the decedent’s will.
- Voluntary Administrator
What letters should Allison request if she finds out that Kenneth’s probate estate is under $30,000? She would want to commence a small estate proceeding.
Small estate proceedings (otherwise known as voluntary administration) involve probate estates that are worth less than $30,000. With small estates, the petitioner prepares and files a Small Estate Affidavit along with the decedent’s original will, a copy of his death certificate, and a $1 filing fee. Non-probate assets are not counted towards the $30,000. For this reason, even if the decedent owned non-probate assets worth more than $30,000, a voluntary administration proceeding can be commenced as long as the decedent’s probate assets are not worth more than $30,000. Voluntary administration is a proceeding that allows the fiduciary to quickly and cheaply obtain the authority to distribute or otherwise dispose of a small amount of probate assets.
No matter the kind of letters that are issued, fiduciaries have to follow their many duties, including, but not limited to, the duty to keep the estate property separate from their own individual property and the duty to act in the best interests of the estate.
We are happy to assist you with all of your probate/administration needs.
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