Estate administration begins after you die and continues whether you had done estate planning or not. Estate administration is the process by which your assets are collected and distributed after all debts are paid. Estate administration can last from several months to several years, depending on how complex your estate is, the ability of your executor or administrator to locate your assets, your family, designated beneficiaries and whether there are any disputes or disagreements.
If you do not have a will, the court process is called an administration proceeding. The representative for your estate is called the “administrator.” The legal document that makes that person the administrator is called the “letters of administration.” The court will choose an administrator based on your next of kin. The court makes the decision in the following order:
- surviving spouse
- father or mother
- brothers or sisters
If you have multiple next of kin on one level, like brothers and sisters, the court will usually name them as co-administrators; or, the Surrogate’s Court may name a person as administrator if all the next of kin agree, even if that person is not first in priority. However, everyone in line above the person who asks to be administrator must agree in writing before the court will go out of order.
- Your surviving spouse would normally be the first choice to be appointed administrator; however, s/he can sign what is called a “waiver of citation, renunciation and consent to appointment of administrator.” This means that someone lower on the priority list has asked the spouse to give up the right to be administrator. If the spouse signs the waiver, s/he has given her right to be administrator to the person named in the waiver.
- If you have a surviving spouse, no children, three grandchildren, and a mother, but a brother and sister petition the court, the spouse, grandchildren and mother must sign a waiver for the brother and sister to be named co-administrators.
If you die without a will, New York law determines the order of inheritance of your property. The law uses the term “issue” to mean any descendant of a common ancestor. Your issue are your biological and adopted children, and also your grandchildren and great-grandchildren if their parents have died before you. You, your brother, and your sister are all issue of your parents and grandparents. Your spouse is not the issue of your family. Your spouse is issue of his or her own parents and grandparents. The following chart shows how your property will be divided or given out if you die without a will:
|If you have a spouse and issue who are still living…||First, $50,000 goes directly to your spouse. Then half of the remaining money and/or property goes to your spouse and the other half is divided among your issue evenly.|
|If you have a spouse who is living but no living issue…||All your money and property goes to your spouse.|
|If you have no living spouse, but you have issue who are living…||All your money and property is divided evenly among your issue.|
|If you have no living spouse or issue, but you have living parent(s)…||All your property and/or money goes to your parent(s).|
|If you only have living issue of your parents (your brother(s) and/or sister(s) or, if they are not living, their issue)…||All your property and/or money is divided among your brother(s) and/or sister(s), and, issue of your predeceased brothers and sisters.|
|If you only have living grandparent(s) or, if your grandparents are not living, their issue (your aunts, uncles, and first cousins)…||One half of your property and/or money goes to your father’s parents or to their issue and the other half goes to your mother’s parents or their issue. If there is no one living on one side, all goes to other side.|
|If you only have living great-grandchildren of your grandparents (i.e., you have no living first cousins but there are living children of predeceased first cousins)…||One half of your property and/or money goes to the great-grandchildren of your father’s parents and the other half goes to the great-grandchildren of your mother’s parents. If there are no great-grandchildren on one side, all goes to the great-grandchildren on the other side.|
|If you have none of the living relatives listed above (i.e., you have no living first cousins and no living children of first cousins)…|| All of your property and money goes to State of New York.|
Legal Editor: Paul Chazan, March 2015 (updated October 2018)
Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.