If you are in the process of planning your estate, you should be thinking about appointing an executor. Wondering whether to appoint an executor through New York letters of administration or in the will? Which is better and more convenient? In this article we tell you everything you should know about the appointment of an executor.
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How to get letters of administration in New York in 2021
Planning what will happen to your estate once you are gone requires decisions and time. To do things right and in the simplest way for your loved ones, you will likely need legal counsel.
One of the simplest ways to carry out your will after death is to appoint an estate executor or administrator. This can be appointed through the will or in the absence of such a document will be appointed by the Surrogate’s Court through the New York letters of administration.
What is an executor of the estate?
The executor of the estate or administrator of the estate is the person who will be in charge of administering and distributing all of the deceased person’s assets.
Some of their main duties and responsibilities:
- Keep track of all property, real estate and other assets held by the decedent.
- Pay debts to creditors, estate expenses, funeral expenses and other administrative things that may be pending.
- Administer the estate while it is still undistributed.
- The most important of the responsibilities of the executor is to distribute the estate to the decedent’s beneficiaries.
- Throughout the probate process, from the time they are named until the estate is distributed to the decedent’s beneficiaries, the executor must keep an orderly record of all expenses and income of the estate. This is because the executor may have to show the accounting to the beneficiaries.
- In addition, all work performed by the executor should be without an agenda or self-interest. The executor or administrator must always act with the objective of carrying out the will of the decedent. If an executor acts against the wishes of the deceased, a breach of fiduciary duty can be said to exist and a lawsuit can be brought to remove the executor power.
Note: Keep in mind that the executor is an administrator of the estate. However, there are other similar figures such as the trustee and the administrator of the estate. You might be interested in our article on the difference between the executor of succession and administrator of the estate or on the difference between executor and trustee.
How can an executor of an estate be appointed?
The executor can be appointed in two ways. This will depend on whether the deceased person left a last will and testament stating who they want to be the executor of the estate or not. When the person leaves a will we say that the succession is testate, while when there is no will it is called intestate. Here you can review the differences between testate and intestate succession.
- Testate succession: In testate succession the deceased leaves a will. In this document, the deceased expressly indicates who will be the executor of the estate. They can even name co-executors and/or an alternate executor. When the will is probated, the court rectifies the executor named in the will and delivers letters testamentary to the executor of the estate so that the person can act as administrator in all institutions and agencies where necessary.
- Intestate succession: Intestate succession means that there is no valid will to rely on. In that case, it is the Surrogate’s Court who must appoint an executor using a “writ of appointment of executor,” which is the document that will allow the chosen person to act as executor. Check here what are the intestate succession laws in New York.
What is the letter of administration of the executor?
New York letters of administration is a document issued by the Surrogate’s Court. This document allows the executor to act and perform the functions of an executor when a person dies without a will. That is, when the deceased did not indicate in their last will who they wanted to administer the estate.
The executor administration letter will allow you to present yourself as administrator of the estate in financial institutions, government agencies, hospitals, among others.
The equivalent of the executor administration letter or letters of administration when there is a valid will are the so-called “letters testamentary”.
What is the process of New York letters of administration:
- When the person dies without a will and the estate administration process begins, the surrogate’s court must verify which close and living relatives the decedent has.
- Of all the living relatives, who is named executor will depend on the priority in the order of consanguineous proximity to the deceased person. It should be noted that the first priority will be given to the surviving spouse, then children followed by parents, brothers and sisters and then come the more distant heirs such as aunts, uncles, nieces, nephews and direct cousins.
- The person entitled to be appointed must file an application for the appointment of an executor with the Surrogate’s Court.
- Such an application must be filed with the Surrogate’s Court in the county where the decedent lived. You should note that most Surrogate’s Courts in the various counties have the same requirements regarding the documents that must be filed. However, there are some courts that have their own requirements and forms. These are, for example:
- Death certificate of the deceased person.
- Petition for appointment of executor.
- Affidavit of relationship.
- Affidavit that the estate has no debts.
- Affidavit of the heir.
- Affidavit of due diligence.
- In the event that there is no clarity or any other relative on the priority list questions or objects, the court may be asked to hold a kinship hearing. It should be considered that proof of parentage requires that evidence be presented regarding the decedent’s ancestors, family tree and relationship to the person claiming to be related to the decedent. This includes the presentation of certain official documents such as birth records and certificates, death certificates and marriage certificates.
- While it is the estate laws that determine which family member is entitled to be appointed administrator of an estate, it is important for the decedent’s immediate and next of kin to protect their interests in the decedent’s estate. This includes being mindful of who administers the estate if the decedent died without a will.
- In the event that a person dies without a will and there are disputes as to who will be the administrator of the estate, the Court may appoint a government official called a Public Administrator to perform the duties of executor of the estate.
Duties to be performed by the executor appointed by the Surrogate’s Court:
- Obtain a tax identification number for the estate from the federal government.
- Open a bank account where the executor can keep an orderly account of all expenditures and income to be had with the estate.
- Request information from banks and other financial institutions that the owner of the accounts is deceased. Ask those entities that control the deceased’s assets to turn over any money that may be there, as well as to pay any debts or loans that may be outstanding. In order for the banks to release all of this information to the designated executor, the executor’s appointment letter and death certificate must be attached to the decedent’s death certificate.
- Transfer assets from the decedent’s name to the name of the estate.
- Pay all debts of the decedent, whether to financial institutions or other entities.
- Collect claims of the decedent.
- Distribute the assets of the estate to the beneficiaries of the estate according to the priority each has.
- After obtaining the proper exemptions, you must provide an accounting to the beneficiaries. This can be informal or judicial if requested by the beneficiaries.
Can one apply to be administrator of the estate when there is no direct relationship?
The answer is no. New York letters of administration will only be granted to someone who is a direct relative of the decedent or related to the decedent.
How long does it take for the Surrogate’s Court to grant letters of administration?
In general, it can take a few months for the Court to grant the letter of administration of executor to anyone who has applied for it. This is provided that:
- All documents required by the Court have been filed.
- There is no family dispute as to who will administer the decedent’s estate. In that case the process can take years.
You should also be aware that the court may deny the application for a writ of appointment to be executor altogether and it may be a public administrator who takes the place.
What are limited letters of administration?
In New York State, limited letters of administration are a type of letter issued by the Surrogate’s Court. Their function is to allow people to perform limited and very specific functions with them. When a person dies and there is someone interested in the decedent’s estate who is not the executor, that person could apply to the court for a limited administration letter.
Some limited charters that may be issued by the court grant the following powers:
- Initiate a lawsuit.
- To investigate the estate assets.
- Initiate discovery and turnover proceedings.
The court may grant such limited letters as often as it sees fit as long as they do not prejudice the estate.
When are limited letters necessary?
- If you need to avoid posting a bond, you can simply collect the estate assets and will not be allowed to distribute without a court order.
- If you want to bring a lawsuit on behalf of the decedent, such as a wrongful death action.
- If you wish to investigate the self-governance activities of an executor that may be unfair or may be in breach of the fiduciary duty granted to you.
- If you wish to investigate whether all estate assets have been placed in the hands of the fiduciary.
- If you wish to investigate the conversion or theft of assets.
So what are temporary letters of administration?
- They are issued while a petition for letters of administration is pending in court.
- They expire every six months, i.e., they are temporary.
- They are used to address an immediate estate-related need or concern.
- They are generally used to handle urgent matters, such as initiating a lawsuit when the statute of limitations is about to expire.
How to obtain limited letters of administration?
- A petition is filed with the Court explaining the reasons and purpose for the request.
- You must notify all interested parties and provide documents supporting the intentions of your request.
- In granting a letter of limited administration, the court will give higher priority to beneficiaries who have a greater interest in the assets of the estate.
- In some cases it is likely that a hearing will be held to determine the need for a limited letter of administration and its objectives.
Why is it better to have a will at the time of death rather than going through a letter appointing an executor?
It is important to note that letters of administration are a valid mechanism for initiating the transfer of assets when there is no will. However, a will can have many benefits and be a way to plan and express a last will and testament.
Reasons to have a will:
- When there are young children. When there are minor children, the estate funds may be held under the control of the court in the absence of a will. In contrast, with a will, a testamentary trust can be created.
- Taxes. Without a will, it is very likely that the estate will pay more taxes. This happens because when there is no planning of what will be done with the estate, it can generate disorder and disorganization in its administration. In that sense, it is important to have legal advice that can guide you through the process and thus take advantage of certain aspects of the gift and inheritance tax laws.
- For the family. Losing a loved one is difficult enough and can cause a lot of pain. A lot of headaches can be saved when a last will is expressed through a detailed and orderly document such as a will.
- Appoint an executor you trust. Kinship does not mean trust. Being able to appoint whoever you want before death to administer the estate will leave out the uncertainty of not having left everything settled. This will ensure that the relatives will receive what is stated in the will.
- Avoid conflicts between relatives. Whoever nominates themselves as executor can generate conflict among relatives. Leaving a will makes it possible to name an executor and ensure that it is the last will and testament.
- Prevent property from passing to the State. When the deceased has no living relatives to inherit the estate, the state can take everything. Even if there are no relatives, it can always be donated to a foundation or bequeathed to a friend.
Note: In addition to the will, which is one of the main estate planning tools used today, there are others such as the trust which can be revocable and irrevocable. Also read about the difference between a will and a trust. Also, learn what things you can do with a power of attorney.
Legal representation in obtaining New York Letters of Administration
Having a trustworthy executor is key to an orderly administration of your estate. That’s why it is important to express your last will and testament in a will. In case there is no valid will, the laws of intestate succession will be followed to find and appoint an executor to administer the estate.
At Ortiz & Ortiz we have attorneys experienced in the probate process who can help you draft a will to avoid going through the intestate succession process. If you have a loved one who has recently passed away and need advice on the inheritance process, we can help you with the following:
- Advice on estate planning issues.
- Assistance with the entire intestate succession process in New York.
- Recommendations when requesting an executor administration letter, temporary or limited letters of administration.
Contact us today to help you with your case! We serve in New York City in English and Spanish.