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.