Can the Executor in New York Liquidate All the Estate if There Is No Will?

By Jane Meggitt

If a New York decedent dies intestate, or without leaving a will, there is no executor because such an individual is named in a will. As a result, the Surrogate Court will appoint an administrator to handle the estate. Since the decedent did not leave a will specifying beneficiaries, his property is subject to New York's laws on intestate succession, based on marital and blood relationships. However, the administrator must pay all of the estate's debts and taxes due before distributing assets.

Probate

To begin probate of the estate of an intestate decedent, a relative or other representative must bring a certified copy of the death certificate to the Surrogate's Court of the county in which the decedent resided. A qualified relative or other representative files a petition for administration along with any necessary supporting documents, such as a marriage license. Qualification requirements include U.S. citizenship and no felony convictions. In New York, filing fees for the petition depend on the estimated size of the estate. The court then issues letters of administration to the qualified administrator.

Administrator

Under New York law, letters of administration, documents necessary to proceed with estate administration, are granted to a relative of the intestate decedent in order of priority, assuming the person qualifies as an administrator and agrees to serve in that capacity. A surviving spouse has first priority, followed by children, grandchildren, parents and siblings of the decedent. The probate court may grant the letters of administration to multiple individuals, such as each child, if they share equally in the estate. The court may also appoint a trust company or qualified fiduciary institution as administrator, or a public administrator.

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Administrator Duties

The administrator must provide the court with the names and addresses of any heirs to the intestate estate. She must also inventory all real estate and personal property held solely in the decedent's name, along with the value at the time of death. She pays all of the decedent's debts out of estate assets and files the final personal tax return and estate return, paying any taxes due. When all debts are discharged, she presents a final accounting to the Surrogate Court. After approval, she distributes the assets according to New York intestate succession laws and closes the estate.

Intestate Succession

Under New York's law of intestate succession, if there is a surviving spouse and no children, the spouse receives the entire estate. If there is a spouse and children, as of the time of publication, the spouse receives $50,000 in addition to one-half of the estate's assets, with the remaining assets divided proportionally among the decedent's children. If there is no surviving spouse, the assets are divided proportionally among the children. If there are no children, the estate is distributed in the following order: surviving parents; siblings; grandparents; aunts and uncles; nieces and nephews, and cousins. Whole and half-siblings are treated equally for heirship purposes under New York law.

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