Surrogate’s Court Procedure Act § 1418: Letters of Administration With Will Annexed;  When and to Whom Granted

When someone passes away, his or her estate must be settled and assets transferred to others. Before the transfer of assets can occur, an administrator must take care of all of the tasks required to wind up the estate. If the decedent left a will, typically the decedent would have named the person who he or she wanted to perform the estate administration tasks. This person is called an executor. Before the executor has the legal authority to perform the tasks related to administering the estate, the Surrogate’s Court must approve the appointment of the executor, and issue that person a legal document referred to as “Letters.” To learn more about the Surrogate’s Court procedures related to the issuance of letters, including the requirements of Surrogate’s Court Procedure Act § 1418, Letters of administration with will annexed;  when and to whom granted, contact an experienced New York probate attorney New York at the Law Offices of Stephen Bilkis & Associates.

1. Preliminary letters testamentary: Surrogate’s Court Procedure Act, § 1412
2. When letters testamentary may be issued: Surrogate’s Court Procedure Act, § 1414
3. Supplementary letters, executors not named in letters not to act: Surrogate’s Court Procedure Act, § 1415

New York has different names of letters of administration issued under various conditions. For example, if the letters are issued to the person named as executor in a will, then the letters are called “Letters Testamentary.” In the case of an intestate decedent, the letters issued to the administrator are called “Letters of Administration.”

If the decedent has a will, but the letters are not issued to the executor named in the will, then the letters are called, “Letters of administration with will annexed.” For example, if no executor is named in the will, then the person appointed by the court to administer the estate would be granted Letters of administration with will annexed. Similarly, if the testator did name an executor in his or her will, but that were is the eligible to serve, chooses not to serve, or is unable to serve, then the court would have to appoint another person and issue him or her Letters of administration with will annexed.

New York has rules as to who can be granted letters of administration in cases where there is a will, but an executor was not named in the will, or there is no executor qualified to act. In such a case, there may be multiple people who wish to serve as estate administrator and receive letters. The Surrogate’s Court will determine who to issue letters to based on the following order of priority:

• Sole beneficiary. If there is sole beneficiary mentioned in the will, that person would have first priority in being appointed estate administrator and receiving letters of administration. If the sole beneficiary passed way, then the letters would be issued to his or her fiduciary. If the sole beneficiary is a U.S. corporation, then the corporation can serve as the administrator even if its charter does not specifically authorize it to.
• Residuary beneficiary. The next person or persons in line to receive letters would be one or more of the residuary beneficiaries. A residuary beneficiary is the person who receives any assets left in an estate that is not specifically left to another beneficiary. If the residuary beneficiary passed way, then the letters would be issued to his or her fiduciary. If the residuary beneficiary is a U.S. corporation, then the corporation can serve as the administrator even if its charter does not specifically authorize it to.
• Other interested party. The next in line to receive letters would be a person or persons who have an interest in the estate. For example, an intestate heir would have an interest in the estate. If that person passed way, then the letters would be issued to his or her fiduciary.

As an experienced probate attorney in New York will explain, just because the sole beneficiary, residuary beneficiary, or other interested party is entitled to receive letters and is qualified does not mean that he or she is required to serve as administrator. If no one who is entitled to serve is willing to accept the role, then the Surrogate’s Court will issue the letters to the public administrator or the county treasurer. In the alternative, the court will designate someone to receive the letters.

If based on the order of priority the person entitled to receive letters is under the age of 18, is incompetent, or is a conservatee, then the Surrogate’s Court may issue letters to the guardian of the property of the minor, the committee of the property of the incompetent, or the conservator of the property of the conservatee.

The court may grant administration to someone who is not a beneficiary as long as all beneficiaries eligible to serve and they all consent. In addition, the court may allow a trust company or other type of corporation to serve as administrator as long as all beneficiaries consent.

If you would like to be appointed administrator of a loved’s one estate, discuss the matter with an experienced New York probate attorney who will be able to tell you whether or not you are eligible to serve.

1. If no person is named as executor in the will or selected by virtue of a power contained therein or if at any time there is no executor or administrator with will annexed qualified to act, upon the application of any person who may petition for the probate of the will under 1402 the court must issue letters of administration with will annexed in the following order of priority:
   1. to a sole beneficiary or if he be dead to his fiduciary;
   2. to one or more of the residuary beneficiaries or, if any be dead, to his fiduciary;
   3. if there is no eligible person entitled to letters under subparagraphs (a) and (b) of this subdivision who will accept, the court may issue letters to one or more of the persons interested in the estate or, if any be dead, to his fiduciary.
2. If there is no eligible person entitled to letters under the foregoing subdivision who will accept or an appointment is not made by consent as provided in subdivision 6, letters shall issue to the public administrator or, if there be none for the county, to the treasurer of the county.
3. If none of the persons mentioned in subdivisions 1 and 2 will accept letters the court may issue them to the petitioner or upon petitioner's refusal to accept the same to any person designated by the court.
4. A corporation incorporated within the territorial limits of the United States which is a sole or residuary legatee may act as administrator with will annexed although not specifically so authorized by its charter or by any provision of law.
5. If any person otherwise entitled to letters under subdivision 1 is an infant, incompetent or conservatee the court may issue letters with will annexed to the guardian of the property of the infant, the committee of the property of the incompetent, or the conservator of the property of the conservatee with the same priority as if the infant, incompetent or conservatee had himself been eligible to take letters.
6. Administration may be granted to an eligible person or persons not entitled as beneficiaries upon the acknowledged and filed consent of all of the beneficiaries, provided all the beneficiaries are themselves eligible.  The guardian of the property of an infant beneficiary, the committee of the property of an incompetent beneficiary or the conservator of the property of a conservatee beneficiary may so consent.
7. Administration may be granted to a trust company or other corporation authorized to act as fiduciary upon the acknowledged and filed consents of all the beneficiaries inclusive of those who may be non-domiciliary aliens, provided that all such beneficiaries are otherwise eligible. The guardian of the property of an infant beneficiary, the committee of the property of an incompetent beneficiary, or the conservator of the property of a conservatee beneficiary appointed within the state, may so consent.
8. The court may refuse to issue letters of administration with will annexed where distribution of the estate is possible pursuant to the provisions of this act.

For over 20 years the probate attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have successfully represented clients in matters related to probate, estate administration, and estate litigation before the New York Surrogate’s Court, including matters related to the appointment of executors and estate administrators. If you have concerns in a matter related to the requirements of New York SPCA section 1418, Letters of administration with will annexed;  when and to whom granted, or any other will, 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: Bronx, Nassau County, Long Island, Brooklyn, Manhattan, Queens, Staten Island, Suffolk County, and Westchester County.