The Issuance Of A Decree Of Probate Or Letters Of Testamentary

For letters testamentary under SCPA 1408, the court must be satisfied that a will is valid before it issues a decree or orders admitting the will to probate. At that point, the surrogate must grant letters testamentary to any person who appears in the proceeding, is entitled to letters under the will, is eligible and signs an oath, submits a designation of the clerk for service of process and files a bond (if so required). A mere nomination or being listed as an executor in a will confers no legal authority to that nominated person unless a decree is ordered by the court, and unless that nominated executor is given letters testamentary.

Discussion On Ancient Wills or Ancient Documents

In a situation where a will is very old, courts might relax the rules associated with EPTL 3-2.1 and SCPA 1405 under the ancient document rule of evidence. The ancient document rule of evidence permits the court to consider the unsuspicious appearance of the document and the nature of the place where it was kept over the years in admitting the will to probate. The age that makes a document ancient varies somewhat. An attorney should consider invoking the ancient document when dealing with wills that are 20 or more years old.

Administration Proceedings And Intestate Distribution

When a person dies without a will, it is considered intestate distribution, and an administration proceeding will be necessary. The decedent’s surviving spouse is entitled to the net estate if the decedent was not survived by any children. If the decedent was survived by children, then the spouse would be entitled to $50,000 plus one-half of the rest of the net estate. If the decedent was survived by his or her children only, then the children would take the entire estate in equal shares.

In an administration proceeding, a petition would have to be filed by the person requesting to be authorized as a fiduciary of the estate. All necessary and interested parties would have to be put on notice and cited. Those parties would include those who would receive under the laws of intestacy, which would follow the bloodline. Any interested parties have the ability to contest the application for letters of administration and request that they be given letters.

There is a general rule that when a person dies intestate, there is an order of priority as to who can be appointed a fiduciary. Among those allowed are the surviving spouse, children, grandchildren, parents and siblings. If a decedent is survived only by her mother, her sister and an adult child, then her child would be the first priority for having letters issued. If she is survived by her mother, brother and sister, then her mother would be entitled to letters. If she is survived only by her brother and sister, then the court may grant letters to one or both of them. If she is survived only by her uncle and two cousins, then the uncle would get letters because he would be entitled to the largest share of the estate.

When no other eligible distributees can be located or no one takes the necessary steps to become the administrator of the estate, then the court will issue letters to the public administrator of the county. The court would pursue the same action if the distributee was removed for wrongdoing and no other eligible party existed to fill that position.

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