WHAT HAPPENS WHEN THERE’S NO WILL?
If your loved one passes away without a will, a close family member can petition to be appointed administrator to handle all of the necessary steps to distribute the estate.
The estate that is available for administration will consist of assets that were in the sole name of the deceased family member. Assets that were jointly held by the decedent and another person will pass to the survivor. Similarly, assets that are held in an account for a designated beneficiary will pass to that beneficiary, so long as he or she survives the decedent.
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WHO GETS WHAT IF THERE IS NO WILL?
If there is no will in place, the closest heir or relative has the power to file for administration. New York has a formula for distributing assets, depending on which family members survive the decedent. If there is a spouse, he or she is entitled to the first $50,000 of assets, plus half of the balance of the estate. Surviving children (including the children of any predeceased child) will share the rest of the estate. The formula differs depending on the closeness of the surviving relatives.
The persons who inherit if there is no will are known as “distributees.” Because assets are distributed in accordance with a New York State formula, the emotional closeness of a particular distributee to the decedent is irrelevant.
Let’s say, for example, John Doe dies, survived by two children. John has a very close and loving relationship with one of the children, but has not spoken to the other child in 20 years. Both of those children will inherit equally. It doesn’t matter how John would have divided his assets if he had made a will. Nor does it matter that everyone knew that John would not have given a penny to the other child.
WHO IS ENTITLED TO ACT AS ADMINISTRATOR?
Under New York law, the surviving spouse (if there is one) is the preferred person to serve as administrator.
If there is no surviving spouse, then any of the decedent’s children have equal standing to serve as administrator. There is no preference for the oldest child. Nor is there a preference for the child who was closest to the decedent. The administrator will often be the person who gets to the courthouse first.
If there is no spouse, no children, and no children of a predeceased child, then the law looks to whether there is a living parent of the decedent. If not, the formula next looks to a sibling, to nieces and nephews, grandparents, aunts and uncles, and cousins.
Sometimes there is a battle over whom will serve as administrator. If several persons of equal consanguinity (a fancy word for closeness by blood relation) each wish to serve as administrator, the court will first disqualify any person who is a convicted felon.
Other issues that arise will be whether a person who wants to be the administrator is a person who is unfit by reason of substance abuse (drugs or alcohol) or who has proven himself or herself to be dishonest with regard to monetary issues. This will often be a matter that is battled in court.
There are other practical considerations, such as whether a person who wants to act as administrator has a credit history that would entitle him or her to post a bond. (A bond is similar to an insurance policy, and is designed to pay only if the estate fiduciary runs off with estate money). If there is a will, the will usually dispenses with a bond, but in a situation where there is no will, the administrator will sometimes have to post a bond.
Attorney Michael S. Haber can assist you with all of the steps and decisions involved in this process, and can help to make the process smooth and relatively easy.
