Section 2

INTESTACY: WHEN A PERSON DIES WITHOUT A WILL

A. Application for Administrator
B. Heirs and Their Rights
C. The Role Of The Estate Administrator
D. Distributions to The Heirs Under New York Law

A. Application for Administrator

When a person dies without a Will, the person is deemed to have died "intestate." If assets in his or her sole name are valued at more than $30,000, the estate requires a court-appointed administrator. This is done through an application (petition) for "Letters of Administration" to the Surrogate's Court (typically in the county where the decedent resided). The Court's Letters of Administration names the person appointed to serve as the Administrator (e.g. the representative) of the estate. In general, the petition for Letters of Administration is prepared by an attorney on behalf of one or more of the "heirs"--the decedent's closest adult relatives.

Although an individual may be survived by a number of relatives, the individual's "heirs" for purposes of inheritance are the closest relatives as defined by New York law. Heirs are entitled to be appointed Administrator in the following order of priority:

(1) Spouse

(2) Adult Child

(3) Parent

(4) Sibling

(5) Niece or Nephew

(6) Any other eligible heir

For example, where the decedent is survived by one or more children, the decedent's brothers and sisters are not his heirs for inheritance purposes or to be appointed as Administrator. Conversely, if the decedent is only survived by one or more siblings, then they are his sole heirs for purposes of inheritance and would be eligible to be appointed as Administrator. Laws do not take into account the emotional or physical closeness that may have existed between the decedent and an individual; only blood relationship is relevant (including half-blood).

If necessary, the Court may appoint two or more "Co-Administrators." However this creates the possibility of disputes, because any decisions by two Administrators would have to be unanimous.

Prior to applying for Letters of Administration, the applicant must attempt to determine if the decedent left a Will. For example, if the decedent had a safe deposit box, an application must be made to the Surrogate's Court to search the box for a Will.

B. Heirs and Their Rights

The law recognizes that estate administration can be a source of dispute, and has a number of measures in place to help ensure that the process of appointing an Administrator is fair:

C. The Role Of The Estate Administrator

Once the Court has appointed an Administrator the process of managing the decedent's assets begins.

After being appointed by the Court, the Administrator collects the assets held in the sole name of the decedent. The Administrator uses those assets (and any income from them) to pay the decedent's debts, taxes and administration expenses. The Administrator will also be responsible to complete the administration and settlement of the estate which will include many of the items set forth in the Section 4 entitled "Duties of the Executor and Administrator" starting on page 11 below.

D. Distributions to The Heirs Under New York Law

Once the assets are collected and the debts and administrative expenses are paid, the remaining assets and income held by the Administrator are distributed among the heirs. Each family situation is different, but here are basic guidelines governing distribution of the assets according to who survived the decedent:

(1) Spouse, but no children: spouse receives the entire estate;

(2) Spouse and children: spouse receives $50,000 plus one-half of the balance of the estate; child or children share the remaining balance. If any children passed away before the decedent, their children (the decedent's grandchildren) count as heirs among the decedent's other children;

(3) Children, but no spouse: children share the entire estate;

(4) Parents, but neither spouse nor children: parents receive the entire estate;

(5) Brothers and sisters, but no spouse, children, or parents: brothers and sisters (including the children of brothers and sisters who have already passed away) share the entire estate;

(6) First cousins (grandchildren of maternal and/or paternal grandparents): maternal first cousins share one-half of the estate; paternal first cousins share the remaining onehalf of the estate.

Where the heirs consist of individuals from different generations, the formula becomes increasingly complex.

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Howard Garfinkel, Esq.

Lauterbach Garfinkel Damast & Hollander, LLP
49 North Airmont Road, Suite 101
Suffern, New York 10901
845-368-4400 - Office
howardg@lgdhlaw.com