A decision to pursue a role as an estate representative should be made more out of fear than foresight. Placing your bets on someone else to get the job done can sometimes be a dangerous choice. If you are debating whether to file a petition to become a fiduciary, the answer of course varies depending on the circumstances. But, if you are an interested party –that is, you are entitled to receive an inheritance from the subject estate – the only way to ensure its proper administration is to undertake the task of serving as fiduciary. Win that battle, and you have won the war.

Oftentimes, with power comes fraud, self-dealing, bad faith, reckless or bad decisions. You can avoid this dilemma by being in control. Your inheritance may be worth tens of thousands of dollars, if not hundreds, so why place your future in someone else’s hands.

Competing Petitions  

Just when you think you are out of the woods because you filed a petition with the Surrogate’s Court to be appointed as fiduciary, a competing petition may be filed by another interested party. This means that someone else is aiming for the top spot. With two competing petitions at hand, New York Surrogate’s Court must make a decision as to who will they appoint as the estate administrator.

Take note that, even if someone beats you to the punch (a petition is filed by another party), it is not to late to file your own, as long as no one has been appointed. But time is of the essence. You must act act as soon as you receive notice of their petition.

Filing Objections  

When there two opposing applications for estate representative, there are different ways to approach this situation. If there are sufficient grounds (ie felony, dishonesty, substance abuse, etc) that would make the petitioner unfit to serve, objections can be filed to their appointment. Make sure that your objections are legitimate and well articulated on paper. A Surrogate’s Court judge will be reviewing the objections with a fine comb, and will ultimately schedule a hearing on the issues if the parties fail to resolve the matter between themselves. During the hearing, you will need to demonstrate why you are the better choice.

Importantly, be sure that your own documents are not defective, that no items remain outstanding, and service upon all interested parties is complete.

Serving as Co-Administrators

Even if you know damaging information about the other party, and you have trouble seeing eye-to-eye, it may be in your best interest to try to resolve the matter by agreeing to a joint co-administration. If the parties agree to such an arrangement, New York Surrogate’s Court will happily issue an order appointing two fiduciaries. Courts favor parties agreeing to a co-administration rather than conducting a hearing, since the former is cost effective and time efficient. Cooperation not only saves the court’s time, expedites the process, and saves you money on legal fees, it eliminates the risk of one person being appointed over the other.

The major advantage to serving as a co-fiduciary as opposed to not serving at all, is that you get a say in the day-to-day decisions in managing the estate. For example, the co-administrators will both have to agree where to open an estate bank account, and which real estate broker is hired. If the parties are hostile, these communications can take place between their attorneys.

Public Administrator

If the parties are greatly at odds with each other, thereby making co-administration not feasible, the court will have to choose between the two or by default, appoint a public administrator. If the parties’ qualifications are on the same footing and the judge cannot make a decision who is a better fit, a public administrator will be appointed. At that point, all decisions concerning the estate will be in the sole discretion of the estate attorneys retained by the public administrator office. This is a terrible position to be in. If some balance can be found between the two parties, then a co-administration is the better result.

Commissions and Other Perks  

As a co-administrator, you are entitled to fiduciary commissions, have the right to hire a New York estate attorney of your own choosing, and have the gift of oversight. In a typical estate administration, the beneficiaries have no say in estate affairs, and only learn of the details at the close of the curtain – distribution time. They are not made aware of the asking price and the sale price, their consent is never solicited. As an appointed fiduciary, whether acting alone or with another, you are involved every step of the way. Any hint of bad faith by your co-fiduciary can be stopped in its tracks.

Contact Us

As a law firm in New York focusing on probate estate administration, we help individuals get court appointed as administrators and executors on a common basis. If you need assistance with a pending estate or are simply seeking a consultation, call us at 646-233-0826.

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