Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney in New York for guidance specific to your situation.
Detailed Answer
Under New York law, the process of opening an estate and appointing a personal representative depends on whether the decedent left a valid will (testate) or not (intestate).
Intestate Succession (No Will)
If the decedent died intestate, New York Estates, Powers & Trusts Law (EPTL) 3-1.1 establishes a priority list for who can serve as personal representative. It proceeds in the following order: spouse, children, grandchildren, parents, siblings, nieces/nephews, and other blood descendants or kindred. Because a mother-in-law is related by marriage and not by blood, she is not included in this list and may not qualify to serve in the absence of a will. (EPTL 3-1.1)
Testate Succession (With a Will)
When there is a valid will, the decedent may nominate any person to serve as the executor, including a mother-in-law. The nominated executor has priority unless the court finds the person unfit or unwilling. Letters testamentary are then issued by the Surrogate’s Court. (EPTL 3-1.2; SCPA 1001)
Residency and Bond Requirements
Non-resident executors often must post a bond or appoint a resident agent. The court may waive bond for residents or when waived by will. (SCPA 711)
Helpful Hints
- Review the decedent’s will for an executor nomination.
- Consult EPTL 3-1.1 for priority rules in intestacy.
- File the probate petition in the decedent’s county Surrogate’s Court. (See SCPA 1005.)
- Check bond requirements if the nominee lives outside New York.
- If no eligible personal representative is available, the public administrator may be appointed.