Who can be appointed administrator of an estate?

Let’s begin with some definitions. When someone dies with a will, the process is called Probate. The individual entrusted with administering the estate is the Executor named in the Will.

If one dies without a will the process is called Administration. The person entrusted with administering the estate is called the Administrator.

Since no written instructions are left behind by the decedent who died without a Will, an administrator must be appointed. This is where matters get complicated!

Who may be appointed is the subject of this article. Frequently, there is a royal battle among family members as to who should be appointed. The administrator wields some power, and may be entitled to be paid for rendering his/her services. Thus, it is desirable to be named administrator.

The SPCA, the NY Surrogates Court Rules lends guidance to who may be appointed Administrator. The SCPA outlines who has priority among family members, assuming that individual can qualify.

If there is a surviving spouse, he/she has first priority. Next come adult children, adult grand children, parents and finally siblings who all have an equal right to be an administrator.

The problem arises if there are multiple children or multiple siblings, who compete for the position. Or, if a child believes that the parent is not qualified due to age or disability to be administrator. This problem is compounded when the surviving spouse is a step parent. When a conflict arises, parties may file cross petition or objections to the appointment.

In conclusion, the appointment of an administrator can be complicated and prolong the Administration process.

For more information call or email me at 212-693-3737 or j.weinstein@jlwlawoffices.com

Locating missing estate assets

The biggest problem confronting executors and administrator is locating missing assets.
All searches can be broken down three (3) categories: (A) Direct searches (B) Professional searches (C) Private investigator searches.

A. The direct search consists of:
1. Searching the decedent’s papers, bank records and safe deposit box. Today you will need a court order to search a safe deposit in a bank.
2. Searching the NYS Office of Unclaimed Funds. This is paramount in your direct search.
3. Visit all banks and financial institutions located within one square mile of the decedent’s home or office to see if they have any accounts.

B. Professional searches.
You should contact the professionals that the decedent had relationship with to ascertain their specific knowledge as to the financial institutions the decedent had accounts. The decedent’s attorney or a former attorney would know if the decedent had set up any trusts, formed LLCs or Corporate entities, etc. The decedent’s accountant or financial planner would have valuable personal knowledge of the location of the decedent assets.  If the decedent held tax free bonds, they would not appear on the decedent’s tax returns.

C. Private investigators searches:
A good private investigator can locate assets better than any other professional. Today’s investigators have tools that make most searches broad reaching and surprisingly economical to accomplished. Using the internet, an investigator can complete exhaustive searches in minutes that previously took days, and at a fraction of the cost.
As an experienced Estate Attorney, I can supervise an asset search to ensure the recovery of all the decedent’s assets. Call for an appointment today.

For more information call or email me at 212-693-3737 or j.weinstein@jlwlawoffices.com

How to deal with family conflict in estate matters

In this modern world of multi-marriages, divorces and step children, Will contests and objections to probate are more and more common!!

There are ways to deal with these conflicts to resolve differences without going to trial. The best advice is for parents to do estate planning, which includes preparing a Last Will and perhaps a Trust document. Preparing a personal letter(s) to heirs explaining one’s intention prior to death is an excellent idea but rarely followed.

A Will challenge can be based on three (3) Theories:

1. The will is defective on its face; the will may be missing essential elements.

2. Incapacity, the deceased did not have testamentary capacity to make a will.

3. Undue influence.

A valid Will must be witnessed by two disinterested parties. A challenge of incapacity must be based on medical records and medical conditions at the time the Will was executed. Undue influence is difficult to prove unless a new will was created in favor of a non-family member when the decedent was ill or infirm. When a conflict arises between siblings, a cross petition and or an objection to Probate/Administration may be filed. Extensive discovery proceeding may uncover clues to the decedent’s testamentary intentions.

In many cases, a resolution may be reached in a court supervised settlement conference. I have extensive experience reaching out of court settlement, resolution of disputes between once “close” family members.

For more information call or email me at 212-693-3737 or j.weinstein@jlwlawoffices.com