New York Probate and Estate Administration Lawyer Blog
In the Estate of Tappan, the daughter of the decedent who was also the administrator of his estate, sought permission from the Surrogate’s Court to resign.
An executor or administrator is the person or entity that is appointed by the Surrogate’s Court to manage a decedent’s estate and distribute its assets according to the terms of the decedent’s will or according to New York’s intestate succession rules. “Executor” is the term used when the person is named in the will, while the term “administrator” is used when person appointed is not named in a will. In either situation, the person or entity must be formally appointed by the Surrogate’s Court and receive “letters” before he or she has the legal right to manage a decedent’s estate.
While the court will not force anyone to serve as executor or administrator, if a person takes on the role then decides that he or she no longer wishes to do the job, pursuant to SCPA § 715 he or she must petition the court and ask permission to resign. Typically, if the administrator is qualified and has started the process of managing an estate, the court will deny a petition to resign, unless the administrator presents legitimate reasons for resigning and names a replacement.
In the Estate of Tappan, the decedent passed away unexpectedly and intestate. At the time he was separated from his wife who had given up any claim to his estate and any right to serve as a fiduciary. The decedent had two children- a 22-year-old daughter and an 18-year-old son. The daughter, who was a college student in Utah at the time of her father’s death, volunteered to serve as the administer of the estate, and the Surrogate’s Court issued her letters of administration.
At the time that she volunteered for the job, the daughter did not fully understand the condition of her father’s estate and the tasks involved in managing it. She soon discovered that her father’s real property was in foreclosure and that the marine vessels and vehicles that he owned were of little value. The activities that daughter as the estate administrator would have to do to wind up the estate included filing an inventory, filing tax returns, and removing the vehicles from property that was owned by third parties.
Feeling emotional about the death of her father and overwhelmed by what she had to do to settle his estate, the daughter decided to resign. She petitioned the court and stated that the reasons she wished to resign included her age, her location in Utah—2000 miles away from New York, her compromised emotional state as a result of the unexpected loss of her father, her unfamiliarity with completing tax documents, and her unfamiliarity with the requirements of the Surrogate’s Court. In addition to requesting to resign, the daughter also requested that the court appoint the Public Administrator of Nassau County to take over. Typically, when no one who is entitled to letters is willing to serve as the administrator of an estate, the Public Administrator takes on the role. An administrator, whether a family member, the Public Administrator, corporation, or someone else, has the right to reasonable fees. While family members often do not accept fees, the Public Administrator requires payment for his or her services.
Here, the Public Administrator filed an opposition to the daughter’s resignation and naming the Public Administrator as the replacement mainly because of the status of the estate. The estate essentially had no assets and no funds to pay the Public Administrator’s fees, commissions, and legal fees.
The Surrogate’s Court granted the daughter’s request. While understanding that in doing so the Public Administrator would be required to serve without being paid, the court noted that allowing the daughter to resign was in the best interest of the estate. Given where the daughter resided, her age, and her inexperience, the Public Administrator would likely have to step in at some point anyway. The court noted that it is better that the Public Administrator take over now versus later when the estate would be in even worse shape under the management of the inexperienced daughter.