Surrogate’s Court Procedure Act § 1001: Order of Priority for Granting Letters of Administration

Creating a will is important for estate planning for a number of reasons. One of the most important reasons is so that you retain control over how your property is disbursed after your death. You can choose which of your family or friends receive specific portions of your estate. You can even choose to leave your property to a charitable organization that is important to you. Failure to write a last will and testament will mean that there is no evidence of what you want to happen to your property. The court would have no other choice then to base the distribution of your assets to your legal heirs based on New York’s rules of intestate succession. Further, a lack of a will would also mean an absence of a named executor to manage your estate. Instead, the court would have to appoint someone who petitions the court for the job. The law provides the court guidance as to who has the right to be appointed administrator. If you are an interested party in an estate administration proceeding and have concerns about the requirements of Surrogate’s Court Procedure Act § 1001, Order of priority for granting letters of administration, contact an experienced New York intestate succession lawyer at the Law Offices of Stephen Bilkis & Associates.

1. Eligibility to receive letters: Surrogate’s Court Procedure Act, § 707
2. Petition;  persons entitled to petition for appointment of an administrator: Surrogate’s Court Procedure Act, § 1002
3. Notice of application for letters of administration: Surrogate’s Court Procedure Act, § 1005

Under New York’s intestacy laws, only a spouse and certain biological relatives have the right to inherit the property of a decedent who does not have a will. If a decedent has a surviving spouse and no children or grandchildren, then the spouse will inherit the decedent’s entire probate estate. If the decedent leaves a spouse as well as children or grandchildren, then the spouse and the children will share in the estate. The share of a predeceased child will go to that child’s children (the decedent’s grandchildren.) Legally adopted children are treated the same way as biological children are treated, while foster children and stepchildren who were not legally adopted would not be entitled to an intestate share. As a New York intestate succession lawyer will explain, the rules of intestate succession do not allow a non-relative or an institution to receive anything, even if there is evidence that the decedent wanted to leave property to friends and institutions.

When a decedent passes away testate, the person responsible for managing his or her estate is called the executor and that person is typically named in the will. On the other hand, when the decedent passes away intestate anyone who would like to serve as estate administrator must submit a petition to the court. However, not just anyone has the right to receive letters. Under Surrogate’s Court Procedure Act § 1001. Order of priority for granting letters of administration, the court must grant letters to the eligible petitioner based on a statutory order for priority.

The decedent’s surviving spouse has top priority in being appointed estate administrator and receiving letters of administration. Thus, if the surviving spouse submits a petition and is eligible, then the court would be required to grant him or her letters, regardless who else might petition for letters. If there is not surviving spouse, or the surviving spouse does not want to serve as estate administrator or is ineligible, the decedent’s children are next in line of priority, followed by the grandchildren, parents, and then siblings.

Next in line to receive letters are other distributees, with preference given to the eligible distributee entitled to the largest share of the estate.

As an experienced intestate succession attorney in New York will explain, regardless of the petitioner having top priority to receive letters, the Surrogate’s Court will not issue letters unless the petitioner is eligible. Factors that would cause someone to be ineligible to serve as estate administrator include:

• Infant. An estate administrator must be at least 18 years old.
• Incompetent. If an individual has been adjudged to not have the ability to take care of his or her own affairs, then that person would not have the ability to care for the affairs of others.
• Substance abuse. An estate administrator must not have a problem with substance abuse.
• Felon. A convicted felon cannot serve as estate administrator.
• Non-domiciliary alien. A non-domiciliary alien except one who is a foreign guardian, would be ineligible to service as an estate administrator.
• Speak English. If a person is unable to read or write English, the court may decide that he or she is unfit to serve as estate administrator.
• Otherwise unfit. If the person has a history of being dishonest, improvident, or has shown in some other way that he or she lacks the qualities required to serve as a fiduciary, the court will decline to appoint him or her as estate administrator.

1. Letters of administration must be granted to the persons who are distributees of an intestate and who are eligible and qualify, in the following order:
   1. the surviving spouse,
   2. the children,
   3. the grandchildren,
   4. the father or mother,
   5. the brothers or sisters,
   6. any other persons who are distributees and who are eligible and qualify, preference being given to the person entitled to the largest share in the estate, except as hereinafter provided:
      1. Where there are eligible distributees equally entitled to administer the court may grant letters of administration to one or more of such persons.
      2. If the distributees are issue of grandparents, other than aunts or uncles, on only one side, then letters of administration shall issue to the public administrator or chief financial officer of the county.
2. If the sole distributee has died or is an infant, incompetent or conservatee, his fiduciary, committee or conservator, if he is eligible and qualifies shall be granted letters of administration.  The court may deny letters to a guardian or committee of the person only.
3. 1. Where all the distributees have died or are infants, incompetents or conservatees the court may grant letters of administration to a fiduciary, committee or conservator of a deceased distributee or infant, incompetent or conservatee distributee, if he is eligible and qualifies.  If the court exercises its discretion preference shall be given to the fiduciary, committee or conservator of the distributee entitled to the largest share in the estate.
   2. Where all such distributees are equally entitled to share in the estate the court may grant letters of administration to one or more of their fiduciaries, committees or conservators, if they are eligible and qualify.
4. 1. Where a distributee who has died or is an infant, incompetent or conservatee would have had a prior right to letters of administration except for his death or disability the court may grant letters to his fiduciary, committee or conservator, if he is eligible and qualifies.
   2. Where no eligible distributee having a prior or equal right to letters of administration will accept the same and there are distributees who have died or are infants, incompetents or conservatees the court may grant letters to a fiduciary, committee or conservator of a deceased distributee, infant, incompetent or conservatee distributee, if he is eligible and qualifies.  If the court exercises its discretion preference shall be given to the fiduciary, committee or conservator of the distributee entitled to the largest share in the estate.
   3. Where all such distributees who have died or are infants, incompetents or conservatees in the circumstances of subdivision 4(b) are equally entitled to share in the estate the court may grant letters of administration to one or more of their fiduciaries, committees or conservators, if they are eligible and qualify.
5. Upon the petition of a distributee having a prior or equal right to letters of administration the court may grant letters jointly to an eligible distributee or distributees and to one or more eligible persons whether distributees or not, including a trust company or other corporation authorized to act as fiduciary.  Such joint fiduciaries shall be entitled to commissions as authorized by 2307.
6. Letters of administration may be granted to an eligible distributee or to an eligible person who is not a distributee upon the acknowledged and filed consents of all eligible distributees, or if there are no eligible distributees, then on the consents of all distributees, except that the guardian of the property of an infant distributee, the committee of the property of an incompetent distributee or the conservator of property of a conservatee appointed within the State of New York may so consent on behalf of his ward.
7. Letters of administration may be granted to a trust company or other corporation authorized to act as fiduciary upon the acknowledged and filed consents of all distributees inclusive of those who may be non-domiciliary aliens, provided that all such persons are otherwise eligible, except that the guardian of the property of an infant distributee, the committee of the property of an incompetent distributee or the conservator of property of a conservatee appointed within the state of New York may so consent on behalf of his ward.
8. When letters are not granted under the foregoing provisions and an appointment is not made by consent as hereinbefore provided then letters of administration shall be granted in the following order:
   1. to the public administrator, or the chief fiscal officer of the county, or
   2. to the petitioner, in the discretion of the court, or
   3. to any other person or persons.
9. Letters of administration may be granted by the court in any case in which a paper writing purporting to be a will has been filed in the court and proceedings for its probate have not been instituted within a reasonable time or have not been diligently prosecuted.

For over two decades the intestate succession attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have successfully represented clients in matters related to the administration of estates. If you have concerns related to the administration of an intestate estate including the requirements of New York SCPA section 1001, Order of priority for granting letters of administration, or any other estate or trust matter, contact one of our attorneys at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Long Island, Nassau County, Bronx, Brooklyn, Manhattan, Queens, Staten Island, Suffolk County, and Westchester County.