When someone dies without a will, we say that they have died intestate. Since there is not set of written instructions as to how to dispose of the decedent’s property, we do so pursuant to the rules of intestacy as set forth in the law. Also, since there is no individual or entity named to administer the deceased’s estate, the law provides that a close relative or a person or an entity with and interest in the estate may apply to become the decedent’s administrator. The Administrator is the fiduciary appointed by the surrogate’s court who stands in the shoes of the decedent, marshalls the estate’s assets, pays its debts and distributes the balance pursuant to the law.
In order to become an administrator, it is necessary to file a petition with the surrogate’s court and commence an administration proceeding. This is very similar to a probate proceeding when a decedent passes away with a will. The petition contains a preliminary description of the property comprising the estate and a “ballpark” estimate of its value together with the names and addresses of all of the distributees. The distributees are the entire class of relatives comprising the next of kin of the decedent who will inherit the property of the estate in equal shares. Where the decedent leaves a spouse and children, the spouse will inherit the greater of fifty thousand dollars or one third of the estate (If the estate is fifty thousand dollars or less, the surviving spouse inherits the entire net estate). The children will equally share the remaining two thirds.
As with a probate proceeding, it is necessary to make sure that all interested parties have received notice of the administration petition. In order to assure that all of the required aparties have been named in the petition, it is usually necessary to provide the court with an affidavit of heirship. This is a sworn statement from a disinterested person who will not inherit any portion of the estate which sets forth the names of all of the decedent’s next of kin and their relationship to him or her. It is necessary for the person giving the affidavit to explain his or her relationship to the decedent and state how long they were acquainted. The affidavit should recite that there are no adopted or out of wedlock children -or it should identify those persons if there are. If there is a child who died prior to the death of the decedent, any children of that child must be identified inasmuch as they will inherit their parent’s share of the estate.
Every person who must receive notice of the administration proceeding must either sign a consent to the appointment of the petitioner as the estate’s administrator or be served with a citation issued by the court. The citation informs its recipients that the petitioner has applied to the court to be named as the estate’s administrator and also sets forth the date, time and place of the hearing. If the petition identifies distributees who are either minor children or mentally challenged adults, the court will appoint an attorney -called a guardian ad litem�to represent the interests of these persons. The appointment is generally made on the return date for the petition and the matter will then be adjourned until the court-appointed lawyer can investigate and file a report with the surrogate.
There are many misconceptions that when one dies without a will, the state takes his or her property. Actually, the law provides a very high level of protection and tries to anticipate the way in which most folks would want to have their property distributed.
It is important to keep in mind, however, that where a spouse and children survive a decedent, the result is often unsatisfactory for a variety of reason. An older spouse who must give up two thirds of a husband or wife’s estate to adult children may not be left with enough assets to live comfortably. A younger spouse with minor children may end up sharing real property or considerable liquid assets with young kids who lack the legal ability to own or manage the assets. The best and obvious way to prevent the complications which often accompany intestacy is simple —have a will.