In New York, when a person dies with a Will owning assets in his or her sole name, the Will must be probated in Surrogate’s Court in order for the nominated executor to be officially appointed and to have legal authority to collect and distribute the decedent’s assets.
To the surprise of many clients, the individuals who would inherit if the decedent did not have a Will are called distributees and must receive a copy of the Will along with notification that the Will is being offered for probate. They must either sign a waiver and consent agreeing to the appointment of the nominated executor and probate of the Will or they must be served with a citation to appear in Surrogate’s Court on a date determined by the court to show cause why the Will should not be probated and/or the nominated executor should not be appointed. New York state law defines a distributee under New York Estates, Powers and Trusts Law (“EPTL”) § 1-2.5, as a “person entitled to take or share in the property of a decedent under the statutes governing descent and distribution.” The law protects the distributees and gives them an opportunity to come forward to object and request limited discovery.
The distributees are the same family members who would inherit if there had been no will, pursuant to EPTL § 4-1.1:
If the decedent is survived by a spouse and children, $50,000 and half of the estate to the spouse, and the balance to the children or children of a predeceased child;
A spouse and no children, all to the spouse;
Children and no spouse, all to the children or any issue of a predeceased child;
One or both parents, and no spouse or children, to the surviving parent or parents;
If no spouse, issue or parents, to siblings or the children of any predeceased siblings;
If the decedent died with none of the above, half passes to the paternal grandparents, or to the children of the paternal grandparents (aunts and uncles) or children of predeceased aunts and uncles (first cousins). The other half passes to the maternal relatives in the same manner. If there is no one surviving on either the paternal or maternal side, the entire estate passes to the other side.
Moving further down the bloodline, if no aunts, uncles, or first cousins – half to the children of the predeceased first cousins on the paternal side and half to the children of the predeceased first cousins on the maternal side. If there are no survivors on one side, the whole estate passes to the other side.
An adopted child and a child born out of wedlock is a distributee, a stepchild is not. A child conceived before death, but born after is a distributee. A half-sibling is also considered a distributee. A divorced spouse is not a distributee, but a separated spouse may be.
If any distributee refuses to sign a waiver and consent, he or she must be served with a citation to appear in Surrogate’s Court. The ability to obtain waivers and consents from all distributees can save the estate considerable time and expense. If a person has a complicated family tree with distant relatives, believes a distributee may not sign a waiver and consent or does not want certain distributees receiving notice, it is beneficial to speak to with an experienced estate planning attorney regarding alternate ways to distribute property at death.
- Melissa Doris, Esq. and Nancy Burner, Esq.