Law Office of Brendan P. Kearse
48 Wall Street
New York, NY 10005
Ph: (212) 425-6244
Probate (Estate Administration when there is a Will)
When someone dies leaving a Will, the surviving family members usually need to hire a lawyer. The lawyer goes to court to have the last Will declared valid (called “probating the Will”). The court will formally appoint a Fiduciary (the person named in the Will or a family member) to wind up the deceased person’s affairs and to distribute his or her assets. The lawyer also advises the person so appointed (called an Executor if there was a Will or an Administrator if there was not) through the administration of the estate.
Intestacy (Estate Administration without a Will)
How does this process of distributing the assets (and paying the bills and taxes) happen when there is no Will? The process is similar to the probate process. You generally hire a lawyer to go to the Surrogate’s Court and file a Petition just as you would if there had been a Will, except that your Petition will state that there was no Will. The Court will insist that the property be divided up according to the intestacy rules, and it will watch over the estate more closely than if there had been a Will, often requiring that the administrator put up a bond and get Court permission before selling any real estate, for example.
What if no one does anything and you think you should be getting part of the deceased relative’s estate? You should take the initiative and hire a lawyer! If no one in the family does anything for more than two or three months, at most, then something is wrong. Somebody will wind up controlling the property, rightly or wrongly, and then the fighting starts. To avoid it, just step forward and start the Court-supervised intestacy process yourself. The Court process ensures that everyone gets formal notice of what is happening and that no one gets cheated, accidentally or intentionally. The lawyer you hire will probably be paid from the assets of the deceased relative anyway, so if you were only going to get one-fourth of those assets, you’ll essentially only be paying one-fourth of the lawyer’s fee. This is not the time to indulge your fear of lawyers or the court system; you will regret it later.
Creditors Rights in Estate Administration
Death generally does not extinguish a debt, but it will change the entity from whom you need to collect a debt. Rather than look to the individual personally for payment of the debt, you will now look to the decedent's estate for payment. Note that death may shorten the time you have to collect a debt or limit your rights in collection of a debt, so you will need to act quickly. Our office assists creditors in collecting debts from a deceased debtor's estate. We also initiate Court proceedings on a creditors behalf when no family members have stepped forward to open an estate.