Probate and Estate Administration Attorney
Much of the affairs with estate planning revolve around future events and the element of uncertainty that comes with them. As your Probate Attorney, it is my duty to ensure things follow their due process throughout the probate proceedings. The legal process before the demise of an estate owner or posthumous for that matter, are equally significant. Farrukh Nuridinov’s law offices understand the pain families feel going through their kinship hearings and offer a wide range of options to help resolve your legal matters and offer guidance.
With extensive experience in the legal industry, my services for probate span across Probate Proceedings, Administration, Litigation and Avoidance.
Probate refers to the legal proceedings that come to be in the state of New York, after the passing of a person who has left a will behind for his property. My job here is to help you determine the value of the state left behind, clearance of outstanding debts or taxes, will validation and estate accounting contestation.
The Estate Administration Process
The administration of a decedent’s estate may be divided into six parts: (1) obtaining authority for an estate representative to act; (2) marshaling the assets; (3) managing the assets and obtaining cash for estate requirements; (4) paying funeral and administration expenses, debts and estate taxes; (5) making distributions; and (6) rendering an accounting and obtaining a discharge of the legal representative.
The basic controlling statutes governing the estate administration process are the N.Y. Surrogate’s Court Procedure Act (SCPA) and the N.Y. Estates, Powers and Trusts Law (EPTL). To these must be added the rules of the surrogate’s courts—whether the rules of the court of a given county or of all courts in a particular department of the appellate division.
Administration is the surrogate’s court proceeding by which a fiduciary is appointed for the purpose of administering a decedent’s estate when the decedent has died “intestate,” i.e., without a will.
The purpose of an administration proceeding is to obtain court appointment of a fiduciary (called an “administrator”) to administer the property of an estate. The evidence of the administrator’s authority to act is called “letters of administration” which are issued by the court. Upon the appointment of the administrator, the court will issue “original” letters (these are called “letters,” although in fact they consist of a single sheet of paper) to evidence the administrator’s appointment. The original letters should be retained by the administrator or the administrator’s attorney. If it is necessary for the administrator to show proof that his appointment remains in effect, he should obtain “certificates of letters of administration” from the court. These “short-form certificates,” as they are colloquially known, certify that the original letters were issued and to whom, and that they are still in effect. The fee for each certificate issued is provided for in SCPA 2402. Currently, the fee is $6.00 for each such certificate.
The various types of letters evidencing fiduciary status authorized by statute are as follows: letters of administration, letters of administration c.t.a., letters of administration d.b.n., limited letters of administration, ancillary letters of administration, ancillary letters of guardianship, ancillary letters testamentary, letters of guardianship, letters of temporary administration, letters testamentary, preliminary letters testamentary and letters of trusteeship. Any letters not included in the foregoing list (e.g., ancillary letters of trusteeship) are not authorized and may not be issued by the court.
When a decedent dies intestate, the statutes prescribe a scheme of distribution of the decedent’s estate, as well as the method for making such distribution. This statutory scheme of distribution, as well as the remain- ing provisions of EPTL article 4, control the determination of one’s status as a “distributee” of a decedent and dictate who will take a share of such decedent’s estate and how much that share will be. Article 4 of the EPTL also sets forth criteria for determining, to some extent, other vital interrelationships, such as priorities for issuance of letters of administration, necessary parties to a probate proceeding and the right to share in wrongful death proceeds.
In order for any surrogate’s court decree to be effective, the decree must bind all the necessary parties to the proceeding. The status of these necessary parties will vary depending on the nature of the proceeding and the relief sought. However, the common thread running through all surrogate’s court proceedings is that the necessary parties are generally those persons who will or might be adversely affected by the grant of the relief being sought. Ordinarily, the statute will define the class of necessary parties; in the case of administration proceedings, that class is defined in SCPA 1003.
Letters of administration must be granted to the distributees of a decedent in the following order:
- surviving spouse
- father or mother
- brothers or sisters
- any other distributees, with preference to the person entitled to thelargest share in the estate.
The fiduciary of a deceased distributee or of an infant, incompetent or conservatee distributee may serve in lieu of that distributee. Letters may also issue to an eligible person who is not a distributee (or representative of a distributee) under the circumstances described in SCPA 1001(5) and 1001(6) upon the designation of all eligible distributees or of all distributees, if none are eligible. Letters of administration may also issue to a trust company under the circumstances described in SCPA 1001(5) and 1001(7).
In a case where two or more persons have equal status, letters of administration may issue to them jointly or to their representatives, or to “one or more” of them or their representatives. If none of the foregoing provisions can be applied in a particular estate, letters of administration will issue as follows:
- To the public administrator, or the chief fiscal officer of the county.
- To the petitioner, in the discretion of the court.
- To any other person or persons.
Letters of administration may be granted even in a case where a writing purporting to be a will has been filed, and proceedings for its probate have not been instituted within a reasonable time or have not been diligently prosecuted. In other cases, where a testamentary instrument is filed or appears to have been lost, the court generally will require that a determination of the invalidity of such instrument be made before issuing letters of administration.
Having established a statutory order of priority for the issuance of letters of administration, it is then possible to define the class of necessary parties to the proceeding pursuant to SCPA 1003. The necessary parties are defined as all eligible persons having a prior or equal right to receive letters of administration.15 If the death of the decedent has not been established with certainty but is only alleged, then the person alleged to be deceased (an “absentee”) is also a necessary party to the proceeding.
Assume the decedent is survived by a spouse and two children. Should one child petition for letters of administration to issue to himself, the surviving spouse and the other child are both necessary parties because the spouse has a prior right to receive letters, and the other child has an equal right to receive letters. If the spouse had made the application for letters to issue to herself, neither of the children would be necessary parties, since the spouse has a presumptive first right to letters of administration, pursuant to SCPA 1001(1)(a).
Where letters of administration are sought in the estate of an absentee, it is also necessary to obtain personal jurisdiction over such absentee and his or her presumptive distributees. Jurisdiction over the absentee is acquired by publication of a citation directed to him or her.
The court may also dispense with jurisdiction over necessary parties who are unknown or whose whereabouts are unknown, provided that those persons are joined in a later accounting proceeding. This dispensation also obviates the need to publish the citation or appoint a guardian adlitem. Where it appears that there are unknown distributees, or where all distributees are first cousins or more remote, personal jurisdiction must also be obtained over the public administrator.
Limited or Restricted Administration
Under certain circumstances, the court may limit or restrict the authority of the fiduciary to whom letters are issued. In an administration proceeding, restricting the fiduciary’s authority often occurs when a cause of action—usually an action for personal injuries (conscious pain and suffering) and/or wrongful death—exists on behalf of the decedent, the decedent’s estate or the decedent’s distributees.
The need for restricting the administrator’s authority stems from the fact that the damages in such action are unliquidated—that is, it is virtually impossible to determine in advance the probable amount of the recovery. Consequently, the court is unable to fix an appropriate amount for the administrator’s bond, and some other form of control is necessary to prevent any mishandling or improper distribution of estate funds.
The letters of administration granted under these circumstances simply will restrict the administrator to the prosecution of any such action, without authority to compromise or settle or to collect any proceeds from the action, thus effectively preventing the administrator from having actual custody or control of the funds. Where the action is the only asset of the estate, the administrator will receive “limited letters of administration.”
Where there are general estate assets in addition to the action, the administrator will receive “restricted letters of administration” and will have full authority to administer the general assets of the estate. A bond would be waived completely when limited letters issue; a bond covering only the general assets (unless dispensed with by the court) would be required for the issuance of restricted letters.
At the time the action is about to be settled or judgment is entered, the administrator must return to the surrogate’s court for a further order modifying or removing the restrictions previously imposed. Such proceeding is called a “compromise.” It is usually accompanied by, and takes the general form of, a voluntary accounting for the estate or for the asset being collected.
Another common situation where letters might be restricted would be where the estate assets include real property. Because it is impractical to require a bond on the full value of the property which, by definition, cannot be physically removed or disposed of, many courts protect such property in another fashion.
Where letters of administration have been granted in a foreign jurisdiction, ancillary letters issued in New York are sometimes necessary for administering property located therein. Typically, such letters would be required to administer real property located in New York, but they might be necessary for administering other types of property as well. Official forms AA-1 through AA-3 are applicable to an ancillary administration proceeding. The general procedures for ancillary proceedings are described in SCPA article 16, and reference should be made to that statute for further information.