A last will and testament will usually designate an executor to carry out the decedent’s wishes. Upon death, the will is submitted to the county surrogate for probate. At the same time, the executor qualifies and is issued letters testamentary, and then may act on behalf of the estate.
When a person dies without a will, any of his next of kin may apply to the surrogate for letters of administration. The applicant must obtain renunciations from the other next of kin to permit the letters of administration to be issued. This means that the others are giving up their rights to become administrators of the estate. This can often become contentious, and result in a complaint being filed with the surrogate seeking to have the court appoint the applicant as administrator. This usually involves a hearing, with the judge determining who will be appointed as administrator.
In a recent case handled by Mr. Whelan, the surviving spouse applied for letters of administration but falsely stated in her application that her husband had no children. She also neglected to disclose the decedent’s interest in two valuable properties. The decedent’s daughter retained this office to file a complaint requesting that the court revoke the letters of administration issued to the surviving spouse due to her fraud in her application.
In response to the complaint, the spouse claimed that the surrogate had not explained to her that the application required disclosure of all children of her husband. She also claimed that she had no idea about the properties, although she had listed one for sale immediately following the issuance of the letters of administration.
Clearly the spouse did not want to seek a renunciation from her stepdaughter, and took an improper shortcut.
At the conclusion of the hearing, the judge determined that the spouse was not fit to serve as administrator, and revoked the letters of administration issued to her. Our client was thus protected from the spouse’s sale of the estate assets without accounting to her stepdaughter for the sale proceeds. It was gratifying to protect our client’s rights in this matter.
