Switch to ADA Accessible Theme
Close Menu
Home / Blog / Estate Planning / Who Serves as Executor of My Estate If I Do Not Have a Will?

Who Serves as Executor of My Estate If I Do Not Have a Will?


One of the key functions of a will is naming someone to serve as the executor of your estate. So what happens if you do not leave a will? In that case, New York law determines who is entitled to serve as administrator of the estate. (Executor and administrator mean the same thing in this context.)

Normally, your surviving spouse is first in line to serve as administrator, followed by your children, then your grandchildren, then your parents, then your siblings. This raises the possibility of multiple people serving together as administrators. As this can make administration of the estate unwieldy, New York law permits all of the “eligible distributees” to consent to the appointment of just one administrator. For example, if you have three children and no will, the children could all agree to have an outside party serve as administrator.

Judge: Children May Not “Revoke” Consent to Appointment of Administrator for Mother’s Estate

A Surrogate’s Court judge in Erie County recently addressed a related question: Can the children revoke their consent after the court appoints an outside administrator?

This case involved a woman (the decedent) who died leaving an estate worth more than $30 million but no will. Her next-of-kin included her three surviving children, and two grandchildren born to a previously deceased child. The beneficiaries all consented to the appointment of the decedent’s longtime attorney as administrator.

Several months into the estate’s administration, the three surviving children petitioned the Surrogate’s Court to remove the administrator. They told the judge they revoked their consent to the administrator’s appointment, and as they represented 75 percent of the estate’s beneficiaries–the grandchildren did not support the petition–that was sufficient grounds for removal.

The judge disagreed, however, nothing there was “no statutory or case law authority which would support” the children’s position. That is to say, nothing in New York law permits a party to withdraw consent to an administrator’s appointment after-the-fact. Indeed, the judge said allowing estate beneficiaries to revoke consent “based on simple whim or caprice” would be “untenable to the orderly and proper administration of an estate.”

The judge further rejected the children’s substantive complaint about the administrator’s performance. The children basically argued the administrator’s actions  “created a conflict” between himself and the children. But New York law only permits a judge to remove an administrator for “actual misconduct.” Conflict between an administrator and the estate’s beneficiaries “is not, on its own, a ground for removal unless this conflict jeopardizes the interest of beneficiaries and the proper administration of the estate.”

Get Help Making a Will from a New York Estate Planning Attorney

Cases like this illustrate the importance of taking charge of your own estate by having a will that names the person (or persons) you trust to serve as executor. It is never a good idea to leave such critical decisions to your children or other family members. So if you need assistance in drafting a will from an experienced Putnam County estate planning lawyer, contact Meyer & Spencer, P.C., today to schedule a consultation.




Facebook Twitter LinkedIn