When a New York resident dies without a valid will, there is no named executor. Instead, a family member or other eligible person must petition the Surrogate’s Court for Letters of Administration. These letters grant the administrator legal authority to collect the decedent’s assets, pay debts and taxes, and distribute the estate to the heirs determined by the intestacy statute (EPTL 4-1.1).
In Westchester County, the petition is filed with the Westchester County Surrogate’s Court in White Plains under SCPA Article 10.
Who May Serve as Administrator
SCPA 1001 establishes a strict priority list for who may be appointed as administrator. The court must offer the appointment to eligible persons in the following order:
- The surviving spouse
- The children
- The grandchildren
- Either parent
- The brothers or sisters
- Any other distributee eligible under EPTL 4-1.1
A person with higher priority has the right to serve. If a higher-priority person does not wish to serve, he or she must renounce (waive the right) before the court can appoint someone with lower priority.
If no eligible distributee is willing or able to serve, the court may appoint a creditor, the Westchester County Public Administrator, or another suitable person (SCPA 1001(6)-(8)).
Eligibility Requirements
The same disqualifications that apply to executors under SCPA 707 apply to administrators. A person is ineligible to serve as administrator if he or she is under 18, is incompetent, is a convicted felon, or is a non-domiciliary alien serving without a co-administrator who is a New York resident.
The Petition Process
Filing the Petition
The petitioner files a petition for letters of administration with the Surrogate’s Court. The petition must include the decedent’s date and place of death, the names and addresses of all distributees, a statement that the decedent died without a will (or that no will can be found), and the estimated value of the estate.
The petitioner must also file a certified death certificate and pay the applicable filing fee. Westchester County requires electronic filing through NYSCEF.
Citation and Waivers
The court issues a citation to all distributees, giving them notice of the petition and the opportunity to object or to assert their own right to serve as administrator. If all distributees sign waivers and consent to the appointment of the petitioner, the citation process can be expedited.
Kinship Proceedings
In some cases, identifying all distributees requires a separate proceeding. If the decedent had no close relatives, or if there is uncertainty about who qualifies as a distributee, the court may require a kinship hearing. This typically involves genealogical research and testimony to establish the identities of the heirs.
Bond Requirements
Unlike executors, who often benefit from a bond waiver in the will, administrators are generally required to post a bond (SCPA 801). The bond protects the estate and its beneficiaries against mismanagement or misappropriation by the administrator.
The bond amount is set by the court, typically based on the estimated value of the estate’s personal property. The administrator must obtain a surety bond from a bonding company, and the premium is an estate expense.
The bond requirement is one of the practical costs of dying without a will. A will that names an executor and waives the bond requirement eliminates this expense entirely.
Administrator’s Powers and Duties
Once appointed, the administrator has the same core powers and duties as an executor:
Collect and secure estate assets. The administrator must identify all probate assets, take possession where appropriate, and protect the assets during administration.
Pay debts and expenses. Valid creditor claims must be paid in the order of priority established by SCPA 1811. Funeral expenses, administration expenses, and taxes take priority over general creditors.
File tax returns. The administrator is responsible for filing the decedent’s final income tax return, any estate income tax returns, and, if applicable, the New York estate tax return (Form ET-706) and the federal estate tax return (Form 706).
Distribute the estate. After all debts, taxes, and expenses are paid, the administrator distributes the remaining estate to the distributees in accordance with EPTL 4-1.1.
File an accounting. The administrator must account for all receipts and disbursements. The accounting can be settled by consent of all distributees (an informal accounting) or by filing a formal judicial accounting with the court (SCPA Article 21).
Administrator vs. Executor
The practical differences between an administrator and an executor are worth noting:
Bond. An executor often serves without bond (if the will waives it). An administrator almost always must post bond.
Appointment priority. An executor is chosen by the decedent. An administrator is chosen by statute.
Distribution. An executor distributes according to the will. An administrator distributes according to the intestacy statute.
Compensation. Both executors and administrators are entitled to statutory commissions under SCPA 2307, calculated on the same schedule.
Letters of Administration C.T.A.
If the decedent left a will but the named executor cannot serve (because the executor predeceased the decedent, is ineligible, or declines to serve) and no successor executor is named, the court issues Letters of Administration C.T.A. (cum testamento annexo, meaning “with the will annexed”) under SCPA Article 15. The administrator c.t.a. distributes the estate according to the will, not the intestacy statute.
Timeline in Westchester County
For uncontested proceedings where all distributees consent, Letters of Administration can typically be issued within a few weeks to two months. Contested proceedings, or cases requiring kinship hearings, take longer.
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