Roles of Executors and Administrators

To Probate – or Not to Probate? That is the Question. Below May Be The Answer 

Suzy died in Brooklyn, New York last week. She was survived by her five children. Suzy’s youngest daughter, Laura, claimed that she was in possession of Suzy’s original Will. The other four children were shocked and surprised to hear this because Suzy always told them that she didn’t need a Will as she intended for everything to be spilt equally among all of the children. Laura filed the Will with the Court. She did not file a probate petition because she was not listed as the Executor.

Laura told her brother, Jason, that he should file for probate because he was listed as the executor. Jason consulted his remaining siblings and Jason, along with the remaining siblings, decided that they did not want to offer the Will for probate. Instead, they wanted to take the position that Suzy didn’t leave a Will and therefore, seek Letters of Administration.

There are several instances where the Court may issue Letters of Administration despite the existence of an instrument purporting to be a Will. Examples are:

  1. When the distribution scheme under the Will is the same as without a Will (the Will gives equally to all of the children and the children would get equally without the Will) and the expense of probating the will is too great relative to the size of the estate because of a technical issue with the Will (difficulty in locating witnesses and no self-proving affidavit).
  2. When the distribution scheme under the Will is different than without the Will but all of the parties (both beneficiaries and distributees) consent and the Court is satisfied that no useful purpose would be served with a probate proceeding.
  3. When the sole beneficiary is also the sole distributed who wants to avoid probate costs.
  4. Where the Will has not been probated within a reasonable time or the probate proceeding has not been diligently pursued.
  5. Where all of the disposition set forth in the Will have lapsed for some reason

It is important to review the dispositive provisions of the Will and gauge the steps necessary to probate the instrument in order to determine whether to proceed with probate, or whether, it may be more efficient and economical, to simply set aside the will and seek Letters of Administration.

Additional resources provided by the author

For more information, please contact NYC Probate Litigation, Guardianship, NYC Probate and Estate Planning attorney Regina Kiperman:

Phone: 917-261-4514
Fax: 929-556-2089

Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005

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