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


Many New Yorkers put off making a will until it is too late. When this happens, a person is said to die “intestate.” State law then determines who has the right to be named as executor or personal representative of the deceased person’s estate.

For some people this may not be a bad thing. But in other cases, an intestate estate may lead to disagreement between family members as to who should administer the estate. This in turn can lead to costly and unnecessary litigation.

Court Rejects “Abandonment” Challenge to Wife’s Appointment as Administrator of Husband’s N.Y. Estate

For example, the Second Department recently affirmed an order issued in a Westchester County probate dispute involving an intestate estate. The deceased lived in South Carolina at the time of his death. Leaving no will, the decedent’s wife asked a South Carolina court to appoint her as personal representative of the estate under that state’s intestacy laws, which it did.

The decedent apparently owned a condominium in Westchester. Now, probate is state-specific. In other words, if you die while living in one state but have property in another state, your personal representative will need to open a secondary–or ancillary–estate–to administer the property in the foreign state. In this case, the decedent’s wife sought to open an ancillary estate in New York to deal with the Westchester property.

This prompted a second petition from the decedent’s sister. She asked to be named administrator of the New York estate. The sister told the court the decedent’s wife had “abandoned” him prior to his death and was therefore disqualified as serving as personal representative of his estate under New York law.

Now, New York does have such a law on its books. Normally, a surviving spouse is first in line when it comes to naming an administrator for an intestate estate. But if the spouse “abandoned the deceased spouse, and such abandonment continued until the time of death,” the abandoning spouse loses her right to be named administrator.

Unfortunately for the sister, she failed to present evidence in support of her claim the decedent’s wife abandoned him. In fact, the couple remained legally married when he died. The sister never disputed the validity of the marriage itself. The Second Department therefore said the sister had no legal basis to challenge the appointment of the wife as administrator of the New York estate.

Speak with a Westchester County Estate Planning Lawyer Today

If you find yourself in a situation where you may not want your spouse to serve as executor of your estate, it is critical you make your intentions known by executing a proper will. You are generally free to name anyone you wish as your executor. But without a will, a court will be forced to follow New York intestacy law.

The Westchester County estate planning attorneys at Meyer & Spencer, PC, can help. We advise our clients on all aspects of the estate planning process. Call us today to schedule an appointment so we can sit down and learn more about your situation.




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