The following proceeding covers those decedents who died with over $30,000.00 in assets. If the decedent died with a Will, the proceeding is proceeding is PROBATE. If the decedent died without a Will, the proceeding is an ADMINISTRATION.
For those decedents who died without a Will (intestate), ADMINISTRATION is the process in which Letters are issued to a distributee of the decedent who is eligible to receive them. Thus, it must be determined who are and who are not distributees. EPTL §1-2.5 defines a distributee as a "person entitled to take or share in the property of a decedent under the statutes governing descent and distribution." EPTL §4-1.1 establishes the rules for the descent and distribution of a decedent's estate as follows:
In simplest terms, if the decedent is survived by:
(1) a spouse and children (issue) or the issue of predeceased children, the distributees are such spouse and children or issue
(2) a spouse and no issue - the spouse
(3) issue and no spouse - the issue or the issue of predeceased children
(4) one or both parents, and no spouse or issue - the parent(s)
(5) issue of parents only (brothers/sisters of decedent or the issue of predeceased brothers/sisters) - the brothers/sisters and the issue.
For more remote distributees, please refer to the statute. An adopted child is a distributee, a stepchild is not. A non-marital child may be a distributee if paternity has been established (please refer to the statute for clarification). A divorced spouse is not a distributee, but a separated spouse may be.
The spouse has a prior right to Letters over the children, but if no spouse, they have equal rights with each other. Brothers and sisters have equal rights. Any person with prior or equal rights to Letters must sign a waiver or a bond must be obtained from an insurance company to protect their share. Unlike probate, jurisdiction does not have to be obtained over all interested parties at the outset (although bond may be required). The Court decides whether or not an Administrator must bond the share of others. Notice of Administration may be sent to those parties and an accounting may be required. At that time, jurisdiction must be obtained over all interested parties.
By operation of law, the real property vests in the decedent's distributees at the time of death, making them the owners of the property. If the only asset is real property, you may not have to file an administration proceeding. Distribution of the assets under an Intestate Estate is made according to statute.
Please review the checklist for administration proceedings when preparing the Administration Petition. You must always file a copy of the funeral receipt marked paid or a waiver from the funeral director.
WHERE TO FILE PROCEEDINGS: You must file any proceedings in the Surrogate's Court of the County in which the decedent was domiciled or resided. Normally, the Courts do not consider a nursing home as a domicile, so it would be where the decedent lived prior to going into a nursing home (even if the residence was sold or given up).
Please be advised that you have certain Obligations and Responsibilities as an Administrator.
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