Please note that though a Last Will and Testament has been
filed with the Affidavit of Voluntary Administration, and the Court has
appointed you as Voluntary Administrator, the Will has not been admitted to
probate, and the Court has not passed on the validity of the Will. What this means is that, if property is discovered
which causes the total value of all personal property of the decedent to exceed
the $50,000.00 threshold, the Voluntary Administrator must now formally
petition the Court for probate of the decedent's Last Will and Testament and must defend any contest to the
Will as a result of the formal probate petition.
The above having been said, if a person petitions the Court
seeking their appointment as Voluntary Administrator in bad faith – either
actually making a misrepresentation to the Court, filing a Will of the
decedent’s which is known to have been replaced by a later Will or filing a
Will which is known to be ineffective – this person is answerable for his/her misdeeds, and the Court will enter a judgment if sought by someone who was
harmed by the Voluntary Administrator’s wrongdoing, as well as referring this
person to the local District Attorney’s office for prosecution.
After appointment, the Voluntary Administrator must
undertake to collect assets of the decedent, pay all creditors of the decedent,
and, after waiting 7 months, distribute estate property to either the
beneficiaries named in the Last Will and Testament or to the decedent’s “distributees” as provided for in New York's EPTL §4-1.1.
New York Law provides a specific pecking order as to who can
petition to be the Voluntary Administrator. The order as to who can
petition when the decedent dies without a Last Will and Testament is as follows: 1) surviving
spouse, 2) child or children, 3) grandchildren of predeceased child/children,
4) parent/s, 5) brothers/sisters, 6) nieces/nephews, and, finally, 7) aunts/uncles. If the
decedent died with a Will, then the nominated executor has priority over all
others and is the person who should petition for Letters of Voluntary
Administration.
Please note that if a family member dies leaving real estate
or a cause of action (lawsuit), these assets cannot be administered using the simplified
procedures outlined above, but, instead, the decedent’s Last Will and Testament
must be probated or a petition must be made to the Court asking for "full" Letters of
Administration.
No comments:
Post a Comment