April 24

Dying without a Will in NY: Administration and Intestacy (EPTL § 4-1.1)

When a person who lives in New York dies without a will, the state law of intestacy applies. This means that an administration petition must be brought and since there is no will stating the decedent’s last wishes, the law dictates who gets what. Although the proceedings are similar, there are some differences. Some are superficial: what people refer to as “beneficiaries” during a probate proceeding are actually distributees in an administration proceeding, the former executor is now called an administrator. Yet, in an administration proceeding the administrator is appointed by law, specifically Surrogates Court Procedure Act (SCPA) 1001, “Order of Priority for Granting Letters Administration”. This is an invitation for fiduciary appointment contests. A common example comes when the surviving spouse has predeceased and there are multiple children. When these children oftentimes cannot come to an agreement on who should be appointed, estate litigation ensues and estate litigation is not inexpensive. The easy remedy for this is creating a will and appointing an executor and successor executor, but oftentimes it is too late for that antidote. Regardless, these things happen and it is not the end of the world when they do. Everything can be dealt with.

This law of intestacy in New York is codified in Estate Power and Trust Law (EPTL) § 4-1.1:

“The property of a decedent not disposed of by will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. Distribution shall then be as follows: (a) If a decedent is survived by:

(1) A spouse and issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation.

(2) A spouse and no issue, the whole to the spouse.

(3) Issue and no spouse, the whole to the issue, by representation.

(4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents.

(5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.

(6) One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving maternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.

(7) Great-grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of grandparents or grandchildren of grandparents, one-half to the great-grandchildren of the paternal grandparents, per capita, and the other one-half to the great-grandchildren of the maternal grandparents, per capita; provided that if the decedent was not survived by great-grandchildren of grandparents on one side, the whole to the great-grandchildren of grandparents on the other side, in the same manner as the one-half.

(b) For all purposes of this section, decedent’s relatives of the half blood shall be treated as if they were relatives of the whole blood. (c) Distributees of the decedent, conceived before his or her death but born alive thereafter, take as if they were born in his or her lifetime. (d) The right of an adopted child to take a distributive share and the right of succession to the estate of an adopted child continue as provided in the domestic relations law. (e) A distributive share passing to a surviving spouse under this section is in lieu of any right of dower to which such spouse may be entitled”

The statute is wordy, but it’s all there. In most cases the estate will pass to the spouse and children, but everyone’s situation is different. Life is not static though. Also see my previous post here: the statutory results of EPTL 4-1.1 may not be what you would have wished. Any questions regarding your specific situation can be asked in my Contact page.

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December 4

“I received a NY Notice of Probate in the mail. What is this?”

Once every other week I receive a phone call from a concerned party about receiving a Notice of Probate in the mail. We all know the real question that sparks this phonecall, but I’ve broken it down into five parts for added suspense.

I. What is a Notice of Probate?

Notice of Probate is explained in Surrogate’s Court Procedure Act (SCPA) § 1409. (1) Essentially it is a statutory formality that puts certain classes of people on notice that the decedent has died and that your name is listed somewhere in the will.

So, the question you really called for? Yes. You are named in the will if you receive a notice of probate. Does that mean what you want it to mean? Eh, please read “named” as literally as possible.

II. What do the terms that appear on the notice of probate actually mean? Legatee, devisee, trustee, guardian, executor, testator and successor terms defined. (2)

For the truly inquisitive I’ve placed some working definition of these terms in the footnotes. Most of them are archaic words that the law has never been able to let go of, and probably never will. I like to sum it up as simply as possible: legatees and devisees get stuff and trustees/guardians/executors do stuff. Don’t worry, the law doesn’t expect the doers to work for free though. They are eligible for compensation also. See SCPA §§ 2307, 2308, 2309.

Please note that on the Notice of Probate it will state what title you have, so you can begin to formulate a hypothesis for the most important question.

III. Am I going to receive money?

And here is the let down: it depends.

First off, is the estate solvent? Are there debts and liabilities that essentially negate the estate? If the debts plus the costs of administration are greater than the estate’s assets then no, you are not going to receive any money.

Secondly, what are you named in the will? There is no requirement that the will be sent along with a Notice of Probate, therefore you will probably be in the dark as to what the will states. It is impossible to know if you are receiving money without a copy of the will. I can play the “if this then that” game with you for 15 minutes, but we still won’t know for sure . You could be named solely as a successor executor. If that is the case you are probably not going to see any money. This leads up to our next question.

IV. Can I see a copy of the will?

Yes. A will is a public document that is accessible and it is possible to obtain a copy.

V. What do I do next?

Again this is another one of those questions where it just plainly depends. For example, if you are a specific legatee, you may just have to wait for Letters Testamentary to be issued to the executor and your bequest to be distributed. Feel free to contact me with any other questions.

Anthony Nigro is a Surrogate’s Court practitioner that primarily works out of the following counties: Westchester, Bronx, New York, Kings, Queens, Rockland, Orange, and Dutchess. Appointments can be set up by telephone, email or through his “Contact” page.

(1) “Before letters are issued there shall be filed in the court a notice…that the will has been offered for probate or probated, as the case may be. The notice…shall state whether such person is named or referred in the will as legatee, devisee, trustee, guardian or substitute or successor executor, trustee or guardian…”

(2) legatee: any person designated to receive a transfer by will of personal property (SCPA § 103.33).

devisee: any person to whom real property is transferred by will. (SCPA § 103.13).

trustee: the person appointed, or required by law, to execute a trust (Blacks Law Dictionary).

guardian: A guardian is a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for some peculiarity of status, or defect of age, understanding, or self-control, is considered incapable of administering his own affairs. (Blacks Law Dictionary).

testator: One who makes or has made a testament or will; one who dies leaving a will. (Blacks Law Dictionary).

executor: A person appointed by a testator to carry out the directions and requests in his will, and to dispose of the property according to his testamentary provisions after his decease (Blacks Law Dictionary).

successors: are those named in a will that will take the place of the initial parties named due to incapacity or death.

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