Frequently Asked Probate and Estate Questions
Whether you need to prepare for changes in the life of your loved one or you are sorting out matters after a death, estate issues can be confusing and complex. On this Frequently Asked Questions page, the experienced lawyers at Antonelli & Antonelli share their perspective on many common issues. Don’t see your question here? Don’t hesitate to reach out to our New York City office.
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FAQ: What is Surrogate’s Court?
Definition of SURROGATE’S COURT: (noun) / a specialized court that deals with probate and administration of estates, certain types of guardianships, and certain types of adoptions; also known as “probate court”
The New York State Surrogate’s Court hears cases involving the affairs of decedents, the probate of wills, and the administration of estates. Adoptions are also processed through the Surrogate’s Court. Who is the Surrogate? A Surrogate is a specific type of judge. It refers to the judge who hears cases in Surrogate’s Court.
New York County (Manhattan)
Hon. Nora S. Anderson
Hon. Rita Mella
31 Chambers Street
New York, NY 10007
Deputy Chief Clerk
Hon. Nelida Malave-Gonzalez
12th Judicial District
851 Grand Concourse
Bronx, NY 10451
Elix R. Madera-Fliegelman
Hon. Peter Kelly
88-11 Sutphin Blvd.
Jamaica, NY 11435
James Lim Becker
Deputy Chief Clerk
Kings County (Brooklyn)
Hon. Harriet L. Thompson
Hon. Margarita Lopez Torres
2 Johnson Street
Brooklyn, NY 11201
Doreen A. Quinn
Richmond County (Staten Island)
Hon. Matthew J. Titone
18 Richmond Terrace
Staten Island, NY 10301
Ronald M. Cerrachio
Jane E. Stilwell
Deputy Chief Clerk
Hon. Brandon R. Sall Hon. Helen M. Blackwood, Acting Surrogate
111 Dr. Martin Luther King Jr. Blvd, 19th Floor White Plains, NY 10601
Johanna K. O'Brien
Deputy Chief Clerk
Suffolk County (Long Island)
Hon. Theresa Whelan
320 Center Drive
Riverhead, NY 11901
FAQ: What is a Grantor?
Definition of GRANTOR: (noun) / a party who transfers ownership of property to another
As applied to trust law, the grantor is the party who creates a trust and transfers or grants money to the trust. In real estate law, the grantor is the transferor or seller of real property.
What is a "fiduciary?"
Definition of FIDUCIARY: (noun) / a trustee; an agent who represents a principal and acts in the best interest of the principal “the executor serves as a fiduciary of the estate”
(adj) / involving trust, especially with regard to the relationship between a trustee and a beneficiary “the company has a fiduciary duty to its shareholders”
Plain English translation: a representative of another; one who serves as a fiduciary for another has, not surprisingly, a fiduciary obligation to that other person or entity. A fiduciary obligation requires the agent to act with the utmost loyalty, good faith, care, and confidence. Simply put, the agent must act in the principal’s best interest.
If we’re getting more technical (for you attorneys out there) . . .
The New York Estates, Powers, and Trusts Law (EPTL) defines a fiduciary as a person or entity who:
a) meets the description of a “personal representative”; or
b) who is designated by the creator of a trust or by the court to act as an assignee for the benefit of creditors, or a committee, conservator, curator, custodian, guardian, trustee or donee of a power during minority.1
A “personal representative” is a person who has received letters to administer the estate of a decedent. The term does not include an assignee for the benefit of creditors, or a committee, conservator, curator, custodian, guardian, trustee or donee of a power during minority.2
But EPTL § 1-2.7 brings these excluded positions within the definition of a “fiduciary.” Therefore, “fiduciary” is a broader term than “personal representative.”
1 EPTL § 1-2.7
2 EPTL § 1-2.13
Who May Serve as Administrator of a Decedent’s Estate?
Letters of Administration are granted to the following individuals, in order of priority:
- The surviving spouse;
- Father or mother;
- Brothers or sisters;
- Any other distributee, aka heir, (preference given to the person entitled to the largest share in the estate.
- However, if the distributees are issue of grandparents, other than aunts or uncles, on only one side, then Letters of Administration will be granted to the Public Administrator.
For example, if a decedent is survived by a spouse and two adult children, then the spouse is first in line to serve as Administrator followed by the two children who have an equal right to serve. Note that where there is more than one person in a class entitled to serve (e.g. if the decedent was survived by no spouse and two adult children) each person in the class is on equal footing. If there is disagreement as to which person in the class will serve as Administrator, then the Surrogate has the final say. However, this type of situation is often resolved by an agreement between the heirs to serve as co-Administrators or by requesting that the Public Administrator be appointed to represent the estate. If all heirs eligible to serve are in agreement, they can designate a non-heir to serve as Administrator. If there are no eligible heirs, then consent of all heirs is required. It is important to note that in a small estate proceeding (aka Voluntary Administration, where the estate is valued under $30,000) SCPA Article 13 does not allow the heirs to designate a non-heir to serve as Voluntary Administrator. In such a case, full Administration under SCPA Article 10 would be necessary. It is important to note that certain individuals are disqualified to serve in the role of Administrator (this rule applies to all fiduciaries seeking Letters from the Surrogate).
Some People Can't Be Administrators of an Estate in New York
Under New York Surrogate’s Court Procedure Act §707, the following individuals are disqualified from serving as Administrator of an estate:
- Infants (under 18 years of age);
- Incompetents (lacking sufficient understanding; typically mentally incapacitated);
- Non-domiciliary aliens (neither a US citizen nor a US resident), unless they serve with an eligible co-fiduciary;
- Convicted felons;
- Persons who do not “possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who are otherwise unfit to the execution of the office”;
- Persons ineligible in the Court’s discretion, for example, a person who cannot read or write in the English language.
FAQ: What is an Administrator?
Definition of ADMINISTRATOR: (noun) / any person to whom letters of administration have been issued (NY SCPA §103(2)); a person legally appointed to represent an intestate estate
An administrator is appointed by the Surrogate’s Court to act on behalf of an estate where the decedent had no will, known as dying intestate. Letters of Administration refers to the document issued by the Surrogate granting authority to an administrator.
The word “administratrix” used to be regularly applied as the female equivalent of “administrator”. It is less common today especially in the Surrogate’s Courts of the 5 boroughs of New York City. Usage of the suffix “-trix” as applied to any word to indicate the female version is becoming increasingly outdated
FAQ: What is an Executor?
Definition of EXECUTOR: (noun) / any person to whom letters testamentary have been issued (NY SCPA §103(20)); a person legally appointed to represent a testate estate
An executor is appointed by the Surrogate’s Court to act on behalf of an estate where the decedent died with a will, known as dying testate. Letters Testamentary refers to the document issued by the Surrogate granting authority to an executor.
The word “executrix” used to be regularly applied as the female equivalent of “executor”. It is less common today especially in the Surrogate’s Courts of the 5 boroughs of New York City. Usage of the suffix “-trix” as applied to any word to indicate the female version is becoming increasingly outdated
FAQ: What is a pecuniary interest?
Definition of PECUNIARY: (adjective) / of or relating to money
In estate law, a pecuniary interest refers to one’s interest in an estate that relates to money. Likewise, a pecuniary loss refers to a loss that can be measured in terms of money.
FAQ: Will Contests - Do I have grounds for contesting a will? (Part 4 of 6)
FAQ – Will Contests: Do I have grounds for contesting a will? (Part 4 of 6)
Grounds for Contesting a Will
In the previous posts in this series on will contests in New York, we discussed who may contest a last will and testament and on what grounds a will may be contested. In this Part 4, we will go into further detail on the third ground on which a last will and testament may be contested – incapacitation aka lack of testamentary capacity. Incapacitation is the claim that the Testator did not have the testamentary capacity required to execute a last will and testament. Remember, the information below focuses on will contests in New York and more specifically on will contests in New York City.
Lack of Testamentary Capacity:
In order to be deemed to have the capacity necessary to execute a will, a testator must generally understand:
- What property he owns;
- Who are the natural objects of his bounty; and
- That he is executing a will and its implications.
The standard for testamentary capacity is a relatively low one when compared with the standard for capacity to execute a contract. The Testator need only have testamentary capacity at the time the will was executed. So, a testator who suffered from senility could be deemed to have had testamentary capacity if, at the time the will was executed, he was experiencing a lucid interval.
Only experts and the witnesses to the will can offer their opinion as to whether the decedent had testamentary capacity at the time the will was executed. Other parties can testify about the decedent’s actions but cannot offer their opinion as to whether the testator possessed the capacity required to execute a will.
FAQ: What is a Testator?
Definition of TESTATOR: (noun) / one who makes and executes a last will and testament, for example, if Tiffany has a will drafted and she executes the will, then Tiffany is referred to as the Testator. When Tiffany subsequently passes away, she is said to have died “testate”, or with a will.
The word "testatrix" used to be regularly applied as the female equivalent of "testator". It is less common today especially in the Surrogate's Courts of the 5 boroughs of New York City. Usage of the suffix "-trix" as applied to any word to indicate the female version is becoming increasingly outdated.
FAQ: What is a Trustee?
Definition of TRUSTEE: (noun) / one who acts on behalf of a trust; one who holds legal title to the assets of a trust
The Trustee is in charge of administering the trust, including investing trust assets, keeping records, and making distributions. The Trustee has a fiduciary obligation to the Beneficiaries, meaning that the Trustee must act in the best interest of the Beneficiaries.