Can Mother Serve as Estate Administrator When Sons are Heirs?
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Question:
My children’s father passed away no will. He was not married, so being his children they inherit. One son has been living in his house since 2016 and has been paying the mortgage. We know it has to go through probate in New York. Our other son will sign his interest over to his brother. He has a substance abuse problem and a felony conviction from over 10 years ago! Can I as their mother be the administrator when we’re ready to go through probate?
Response:
This depends on specific New York State law, but the answer is almost certainly yes as long as both your sons agree. The legal term for an estate where there’s now will is “intestacy” and the estate is called an “intestate” estate.
You will have to file for probate in Surrogate’s Court in New York. If your sons sign as petitioners they can nominate you to serve as administrator of the estate. If they’re not on board it could be more difficult. You may be able to file and give them notice, in which case you would likely be appointed unless any of your children objected. I would call the appropriate Surrogate’s Court for the county in which your ex lived and ask them about the process.
You don’t say how long ago your sons’ father passed away. If it was recently, your son who will not be taking an interest in the house might file what’s called a “disclaimer.” That’s paperwork under which he gives up his right to the inheritance and it may be easier than going through probate and then having to prepare a deed for him to convey his interest to his brother. Usually the disclaimer must be signed within nine months from the date of death.
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