If there is no Last Will and Testament appointing an Executor, or if none of the people named as Executor in a Last Will are able to act, then the appointment of an administrator will be necessary to administer the estate.
Who has a right to be the Administrator, and how conflicts over this right are handled in the law, can be tricky.
Administration By The Surviving Spouse
The law gives the surviving spouse or domestic partner a preference in being appointed Administrator. If there is no surviving spouse, or if the surviving spouse does not wish to undertake the duties of an Administrator, the law looks to the children of the deceased spouse. A spouse declining the appointment must file a renunciation with the Surrogate’s Court.
Administration By A Child Of The Deceased
If there is more than one child, each child has an equal right to be Administrator. Hopefully, the children can agree on one of them becoming Administrator. Children declining must file a renunciation with the Surrogate’s Court. If there is no agreement, then the matter must be brought to the Probate Court for a decision by a judge. This can be tricky because there is no guarantee that the judge will accept either party. A complete outsider to the family can be appointed by a judge. Accordingly, it is best to reach some kind of agreement outside of court. In addition, it is important that the child wishing to be Administrator have a good credit rating. He or she will be required to post a bond. A bad credit rating will result in rejection of the bond application, eliminating the prospect of becoming Administrator and further delaying the administration of the Estate.
Administration By A Grandchild Of The Deceased
If there is no child of the deceased surviving or willing to undertake the duties of administration, then the law looks to grandchildren of the deceased. As with children, each grandchild has an equal right to become the Administrator, assuming they have attained eighteen years or more. The procedures and warnings stated above for children, apply here as well.
Administration By Other Family Members
If there are no grandchildren surviving or willing to act as Administrator, the law looks to see if there are any surviving parents, then grandparents, then cousins by degree. Again, each member of a class has an equal right to become the Administrator, and the procedures and rules stated above, apply.
Administration By Others
I have had cases where there are no surviving blood relatives to act as the Administrator of an Estate. The law states, “If the intestate leaves no heirs justly entitled to the administration of his estate, or if the heirs shall not claim the administration within 40 days after the death of the intestate, the Superior Court or Surrogate’s Court may grant letters of administration to any fit person applying therefor.” A “fit person” can be a close friend, an attorney for the deceased, or even a creditor of the Estate. If there is a Last Will and Testament, and none of the Executors listed can act, and if no family members step forward, any heir named in the last will may also apply to the Surrogate’s Court to become Administrator.
Avoid The Need For An Administrator
It is best to avoid relying upon the appointment of an Administrator to handle your Estate. Preparing a Last Will and Testament naming an Executor and successor Executors will result in faster estate administration, waiver of the necessity of posting a bond, and possible family discord over who should be the Administrator. It is certainly the less expensive route for your Estate as well. Draft a will and review it at least every five years to ensure it will work.
If you find yourself in the position of being an Administrator of another’s Estate, have questions about the role and duties of an Administrator, or need to apply to the court, we can help. The attorneys at Law Offices of Robert J. Shanahan, Jr. have many years of experience representing families and assisting with all types of probate issues. We would like to help you. Please call for an appointment.