Decision-making authority after someone has passed

By Richard Kistnen, Esq.

I have been approached a number of times in recent weeks by individuals wanting to learn more about what mechanisms are available to settle the affairs of someone who has passed.  Consequently, I wanted to take the opportunity to gloss over how a person can obtain the authority to wind down an estate of a deceased person.
This topic falls under the larger umbrella of estate planning.  Wills, trusts, insurance policies, changes to title – these are all devices the law has created that a person can utilize to map out who would be left in charge of an interest in property when a person passes.  The easiest document to create to delegate authority and division of interests when someone dies is the will.  Within a will, a person (known as the testator) generally always appoints an Executor.  The Executor’s duty, generally, is to control the administration of the will and to wind down the affairs of the estate.  This includes the ability to handle liabilities, signing authority, and probate of a will.  Many of the other tools listed above and available are tools designed to facilitate the transfer of interests in property.
What happens, though, when there is no executor identified because someone died without a will?  The answer lies in the courts.  A person may petition the Surrogate’s Court for Letters of Administration to handle the affairs of an estate.  Letters of Administration, generally, give the successful petitioner much of the same authority as someone who was appointed executor in a will.  The grantee of Letters of Administration becomes the person in charge of the estate.  The difference between an executor and a grantee of Letters of Administration, then, is that the executor was identified before the person died (in a will), whereas a grantee of Letters of Administration obtains the authority after the person has died (post-humous court order).
Letters of Administration are obtained by filing a petition in the Surrogate’s Court.  An applicant must demonstrate that they qualify to obtain Letters of Administration in accordance with the law.  The petition must also be served on other interested parties, including persons who could have a beneficial interest in the estate, such as family members, to give them an opportunity to contest the petition.  In some instances, a petitioner attempts to get waivers from interested parties that include consent to the petitioner being issued Letters of Administration.
The challenge, often, is that the commencement of a proceeding for Letters of Administration may foster discord and disagreement between family members as to who should be in charge and how an estate should be handled.  This could result in time-consuming and expensive litigation.  It might be prudent, then, to consult with family members before filing a petition for Letters of Administration to gauge whether they will support you or not.
I take this opportunity to encourage you and others, if possible, to plan ahead.  If you have not created a will, look into whether you can and should.  If someone has recently passed and it seems like a situation where Letters of Administration are appropriate, please call or visit the Law Office of Richard Kistnen, (718) 738-2324.