This article explains how to administer an Estate when the decedent did not have a will.

When someone passes without a will, their Estate is administered by the Administration Department of the Surrogate’s Court.

Without a will, the Estate is governed by the laws of intestacy. Generally, if there is a surviving spouse, they receive certain items and $50,000. Then, the remainder is split 50% to the surviving spouse and 50% to the surviving children (the children receive equal shares). If there is no spouse and no children, then other family members (parents, siblings, cousins, etc. will inherit).

Since there is no selection of an executor because there is no will, SCPA 1001 provides the order of who can serve as the administrator of the estate: (a) the surviving spouse, (b) the children, (c) the grandchildren, (d) the father or mother, (e) the brothers or sisters, etc.

A petition is filed seeking letters of administration, naming the close relatives of the decedent who have an interest in the Estate. The Court will also request a death certificate, funeral bills, an affidavit of heirship, and sometimes a genealogist report depending on the complexity of the family tree involved. All of these forms must be approved, and it is not unusual for the Court to require editing.

The downside of not having a will is that the law, and not the decedent, decides how the Estate is inherited. One real concern is where there are minor children. The Court will appoint representatives to represent the minors and will require that they receive their share. This can lead to scenarios where a surviving spouse must sell the family home to make distributions to her children - which does not benefit anyone, but it must be done.

That is why it is always better to have a Will.

If you are interested in an Estate plan, or seeking to become an administrator for someone’s Estate, please contact Raimond & Staines, LLC. Out of office consultations are available.

305 Broadway, 7th Floor, New York, New York 10007

(212) 884-9636

tim@raimondstaines.com
frank@raimondstaines.com

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