By Roman Aminov, Esq. — Law Offices of Roman Aminov
When a Brooklyn resident dies leaving a will, the family at least knows what the deceased wanted. When there is no will, the estate is distributed according to a statute written in Albany, and the family's wishes have nothing to do with it.
This article explains what happens to an estate in Kings County when the decedent died intestate — that is, without a valid will. The process is called administration rather than probate, and while the two look similar from the outside, the differences are substantial and they catch families out. If the decedent left a will, the steps are different and are set out in our earlier article on the probate process in Brooklyn when there is a will.
New York does not allow an intestate estate to be divided by agreement, by need, or by who was closest to the decedent. The shares are fixed by EPTL 4-1.1, and the statute is applied whether or not the result matches what anyone expected.
The provisions that apply most often in Brooklyn are these. Where the decedent is survived by a spouse and by issue — children, or the children of a deceased child — the statute directs "fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation." Where there is a spouse and no issue, the spouse takes the whole estate. Where there are issue and no spouse, the issue take the whole estate by representation.
If there is neither spouse nor issue, the statute continues down a fixed order: the decedent's parents, then siblings and their issue, then grandparents, and onward. Each step is reached only when the one before it is exhausted.
Assume a Brooklyn homeowner dies without a will. The house on Avenue M is worth $900,000 with no mortgage, and there is $120,000 in a bank account in his sole name. He is survived by his wife and two adult children.
The estate is $1,020,000. The spouse takes $50,000 first, leaving a residue of $970,000. She takes one half of that residue, or $485,000, for a total of $535,000. The remaining $485,000 is divided between the two children, at $242,500 each.
The practical consequence is the one families rarely anticipate: the surviving spouse does not inherit the house. She owns slightly over half the estate, and the children between them own the rest. If the house is the main asset and the children want their shares in cash, the house has to be sold or bought out. A will could have left the property to the spouse outright. Without one, the statute does not care that she lives there.
In a probate proceeding, the will names the executor. In an administration proceeding there is nobody named, so SCPA 1001 sets a statutory order of priority for who may be appointed administrator:
Where no eligible distributee will accept, the appointment may fall to the Public Administrator of Kings County.
A person lower in that order can serve, but only if those above them renounce in writing or are cited and default. This is a common source of delay. A daughter who lives in Brooklyn and has managed her father's affairs for a decade still ranks behind a surviving spouse, and still behind a brother who has not spoken to the family in years, if that brother happens to sit higher in the order.
This is the single largest practical difference between probate and administration, and it is worth understanding before the petition is filed.
In a probate proceeding the executor may have to purchase a bond to protect the beneficiaries, but since virtually every will dispenses with the necessity of a bond, the judge is likely to waive that requirement. An administrator has no such protection. There is no will, so nothing waives the bond, and the court will generally require one — the administrator was not chosen by the decedent, and the bond is how the court protects the distributees instead.
The bond can sometimes be dispensed with or reduced, but it takes the written consent of every adult distributee, and even then the decision remains with the court. Where one distributee is a minor, is incapacitated, or simply cannot be found, the consent cannot be obtained and the bond stands.
Bonds are priced against the value of the estate, and the premium is an estate expense that comes out of what the distributees eventually receive. Where a Brooklyn estate consists largely of real property, the court may instead issue restricted letters, which permit the administrator to act generally but not to sell or transfer the real property without returning to court for further authority.
Once letters of administration are issued, the work resembles an executor's, and the deadlines are the same.
The petition itself must list the names and addresses of every distributee, exactly as a probate petition must, together with a certified copy of the death certificate. It is generally advisable to obtain ten to fifteen certified copies at the outset, because each bank, insurer and transfer agent will want one of its own, and ordering them afterwards takes longer than it should.
After appointment, the administrator obtains a federal tax identification number for the estate and opens an estate account. Federal and New York State estate tax returns, where required, are due nine months after the date of death on Forms 706 and ET-706 respectively. The decedent's final personal income tax return must also be filed. Six months after appointment the court requires an inventory of assets on Form 207.20, which will usually mean obtaining an appraisal of the real property.
Only once debts, taxes, administration expenses and the administrator's statutory commissions are accounted for, and the releases signed, can the balance be distributed according to the shares EPTL 4-1.1 prescribes.
Every distributee must be identified and given notice, including those the family would rather not involve. A half-sibling from an earlier marriage, a child born outside a marriage, a relative who emigrated decades ago — each is a distributee if the statute says so, and an estate distributed without them is exposed. Where close relatives cannot be located, the court will require proof of kinship, which can mean a formal kinship hearing and a court-appointed guardian ad litem, and can add a year or more.
Families routinely plan to sell the property to fund the distributions, then discover that the letters are restricted and the sale cannot proceed without a further application. Where a buyer is already in contract, the delay can cost the sale.
An estranged spouse or an absent sibling who is unwilling to renounce, and equally unwilling to serve, can stall an administration indefinitely. It has to be resolved by citation, which means a court appearance and a schedule the family does not control.
Under EPTL 5-3.1 certain property is set aside for a surviving spouse, or for minor children where there is no spouse, before the estate is distributed. It is easy to miss, and once the estate has been distributed without it, recovering it is far harder than claiming it would have been.
No distributee has authority to deal with estate assets until the court has appointed an administrator. Clearing out an apartment, closing an account or selling a vehicle beforehand is a common and understandable instinct, and it creates problems that have to be explained to the court later.
Where the decedent's personal property is worth $50,000 or less, a simplified procedure known as voluntary administration is available under Article 13 of the SCPA. It is faster, considerably cheaper, and does not require a bond. Real property is not counted toward the threshold, so a Brooklyn estate consisting of a house and a modest bank balance may still qualify. Our note on small estates and voluntary administration in New York sets out how the procedure works.
An uncontested administration where all distributees are known, adult and cooperative commonly runs six to twelve months from filing to distribution. Where kinship must be proved, where a distributee objects, or where the bond has to be litigated, it runs considerably longer.
The statutory shares govern what each distributee is entitled to receive. Adult distributees may, once they have received their shares, do as they wish with them, and a beneficiary may disclaim within nine months so that the share passes to the others. What the family cannot do is instruct the court to distribute otherwise.
Only if it was held in a way that passes outside it. Property owned jointly with right of survivorship, or held by a married couple as tenants by the entirety, passes to the survivor directly and is not part of the intestate estate. Property in the decedent's sole name is.
A separate ancillary proceeding is generally required in that state, in addition to the Kings County administration.
Not as a matter of law. In practice, an administration involving real property, a bond, or any distributee who is a minor, incapacitated or missing is difficult to complete without one, and errors in the petition are corrected slowly.
Administering an estate without a will is tedious, and it is slower and more expensive than administering one with a will. It is also, as with any estate, a final act of care for the person who died. Our Brooklyn estate planning and probate practice handles administration proceedings at Kings County Surrogate's Court at 2 Johnson Street, and we are glad to explain where a particular estate stands before anything is filed.
If you are reading this because a relative has died without a will, the first useful step is simply to establish who the distributees are and what the decedent owned in his or her sole name. Everything else follows from those two answers.
Speak with a Brooklyn estate lawyer. The consultation is free, and you will speak with an attorney. Call (347) 766-2685.
Law Offices of Roman Aminov
1600 Avenue M, 2nd Floor, Brooklyn, NY 11230
(347) 766-2685
This article is general information about New York law and is not legal advice. Every estate turns on its own facts. Prior results do not guarantee a similar outcome.
