In New York, the process of administration takes place when a person dies and leaves property without a last will and testament. The act of dying without a will is called dying intestate. An administration proceeding takes place in the New York Surrogate’s Court. The court will give out letters of administration to a qualified heir of the deceased person.
A letter of administration is a document issued by the Surrogate’s Court that authorizes an administrator to distribute the property of the decedent. The Surrogate’s Court also hears the probate of a will if one existed.
Purpose of Letters of Administration
The purpose of letters of administration is to appoint one of the heirs as administrator of the estate, giving them the power to collect and distribute the decedent’s property. Heirs who are eligible to receive property are called distributees. They are distinct from beneficiaries because beneficiaries are those who inherit estate assets under a valid will. If the decedent left only real property, it may not be necessary to file an administration proceeding. Real property is granted to the decedent’s heirs at the time of death.
Who Can File To Be Administrator of an Estate?
The person who can file for the administration of the estate is the person who is the closest distributee, or family member to the decedent. The provisions of New York’s Estate, Powers and Trusts law sets out who is the closest distributee and the order of priority. Under New York law, if the decedent had a surviving spouse, that person has a prior right over the decedent’s children to file for administration. If the decedent did not leave a spouse, the decedent’s children may file. The children have equal rights to each other.
A relative with the prior right who does not want to administer the estate can sign a renunciation and waiver. If relatives, like a decedent’s son and daughter, have equal rights in the administration, they will both sign waivers. An individual who signs a waiver does not give up their share of the decedent’s estate as an heir.
Documents to File With the Court
The relative who files the application, or petition, for a letter of administration in New York should also file a copy of the paid funeral bill, a certified death certificate and other supporting documents in the Surrogate’s Court in the county where the decedent had their primary residence. This relative should make a list of the decedent’s debts, as well as a list of what property the decedent owned at the time they died. The relative can file these papers using the New York State Courts Electronic Filing system (NYSCEF). They should check the e-filing county list for the Surrogate’s Court in the proper county.
The relative applying for administration must list the decedent’s distributees in the petition. These distributees are required to be served a notice called a citation. The citation provides the Surrogate’s Court with jurisdiction over the case and the people involved. If a distributee signs a waiver, they consent to the appointment of the closest relative as administrator. Alternatively, a distributee can come to court to disagree with the appointment.
Filing Fee for Proceedings
The filing fee for a petition for administration is based on the dollar value of the estate. The fee ranges between $45 for an estate worth less than $10,000 to $1,250 for an estate worth $500,000 and over. The court may also impose a fixed fee for filing a petition to commence certain proceedings, such as a $30 fee for a petition to punish a respondent for contempt, a $75 fee for a petition to remove a fiduciary other than a custodian or guardian, and a $45 fee to appoint a trustee.
A fiduciary is a person that the court invests with rights and powers to exercise for the benefit of other parties. The closest relative who becomes the administrator will usually act as a fiduciary.
Limited Letters of Administration
A limited letter of administration is a document that allows the closest living relative to act as an administrator, but also limits that person’s powers. The purpose of having limited letters of administration is to ensure that the administrator cannot do whatever they choose with the estate.
For example, limitations can authorize the administrator to collect and control the assets, but not distribute them. Limitations can also prevent the sale of a home or real property without a court order, set a bond to guard against the administrator’s malpractice or malfeasance, and restrict the amount that the administrator can distribute from the estate.
What an Estate Attorney Can Do
A person who intends to become an administrator or who wants to limit the powers of an administrator should search for an attorney that specializes in estates and trusts law. They should research attorneys to determine whether they have experience in cases that involve intestacy. An estates and trusts attorney may need to search for unknown heirs, prove that the decedent and unnamed distributees are related, and determine the decedent’s last place of residence.
Small Estate Affidavit Program
When a decedent does not leave a lot of assets, it may not be necessary to file a petition for letters of administration. Instead, a distributee can request that the Surrogate’s Court divide the property and distribute it to the heirs. The distributee must file a form called an Affidavit of Voluntary Administration, or Small Estate Affidavit, to accomplish this goal. The distributee can use the program if the decedent has $50,000 or less in personal property or if the decedent owned real property jointly with another party, and the distributees do not intend to sell the property.
The documents that a distributee must file with a Small Estate Affidavit include the name and address of the decedent, a certified copy of the death certificate, the names and addresses of relatives close to the decedent, including the decedent’s spouse, children and grandchildren, information about the value of the assets and information regarding the decedent’s unpaid creditors.
Getting a Death Certificate
There are numerous ways for the person filing a petition for letters of administration or a small estate affidavit to get a death certificate. A death certificate records the official date and location of a person’s death. The person will usually need a certified death certificate with security features that prove the certificate is genuine.
If the decedent died in New York City, the person can order a certified copy of the death certificate online or by mail from the Office of Vital Records. If the decedent died outside of New York City but in New York state, the person can order a certified copy of the death certificate online or by mail from the New York State Department of Health. If the decedent died in the U.S. but not in New York, the person can reach out to the vital records or death records office of the state where the decedent passed. If the decedent was a U.S. citizen who died outside of the U.S., the person should contact the U.S. Department of State for a consular report of death of a U.S. citizen abroad.
- NYCourts.gov: Small Estate Affidavit Program
- NYCourts.gov: Administration
- NYCourts.gov: When There Is No Will
- New York State Unified Court System: NYSCEF, Unrepresented Litigants
- New York State Unified Court System: NYSCEF - New York State Courts Electronic Filing (Live System)
- NYCourts.gov: Variable Fee Schedule
- The Law Dictionary: What Is Fiduciary
- NYCourts.gov: How to Get a Death Certificate
- An administrator can be held personally liable to the estate and the heirs if he does not perform his duties correctly. Consultation with an experienced estate attorney is advised.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.