If you are going through a divorce and have children, this means that you have spent thousands of dollars and at least as many sleepless nights churning the consequences of a failed marriage.  You have likely consulted with an attorney who has, at best, advocated zealously for your best interests and listened to the unique circumstances surrounding the dissolution of your marriage.  Now, the last thing that you want to contemplate is your death.  You signed a separation agreement thereby waiving  all rights of either spouse to administer the estate of the other.  You just received a new lease on life, an opportunity to move forward, maybe travel, advance professionally, enjoy some me time, right?  Would you be surprised to learn that if you have minor children, in the event of your untimely death, your now ex-husband or wife  be appointed the administrator of your estate?  That person you finally extricated yourself from will be authorized by the court to come back and rifle through your belongings and assets, with the blessing of the surrogate court.

In New York, if a person dies without a will the estate falls into intestacy, a statutory framework that provides for the natural objects of your bounty to receive your estate. As a single parent, you probably thought that your children would receive the majority of your estate, which is true.  However, before that property can be collected and distributed, a personal representative must be appointed to administer your estate.  When you have a Will, that person is the executor that you designate in the document.  But what happens when you die intestate, without a Will?  Who will be appointed as your personal representative?

Under New York law, when a person dies without a will, the disposition of property held in her name is governed by New York’s Estates, Powers, and Trusts Law (EPTL) § 4-1.1, the section that defines those who can inherit from a decedent that has died intestate. For example, if the decedent is survived by issue (for example, two children, one 11 years old and one 14 years old), the property will pass to the issue by representation — that is, half to each child.

Under New York’s Surrogate’s Court Procedure Act (SCPA) § 1001, the persons who can be the administrator are, in the order named: the spouse (but if the divorced spouse remains unmarried she won’t have a spouse); children (there are two in the example above); grandchildren (there are none in our scenario); the father or mother of the decedent; and then the brothers and sisters of the decedent.

In our example, there are two children, both minors. SCPA § 707 states that an “infant” (defined in SCPA § 703(27) as a person under age of 18) is ineligible for such an appointment. Since the children are ineligible for appointment, who would serve as administrator? Would it be the mother and father of the deceased? It would seem that a parent would be the natural selection of the deceased client.

Unfortunately, that is not the case. The person who would be entitled to letters of administration is the guardian of the property of the minor. SCPA § 1001 reads, “[i]f the sole distributee … is an infant, … his fiduciary, committee or conservator, if he is eligible and qualifies shall be granted letters of administration.”

Who is eligible to become the guardian (fiduciary) of the property of the minor child of your former client (the deceased recently divorced mother)? The ex-spouse! As long as there is a parent who has not given up parental rights, or is not otherwise disqualified to serve as a guardian, that parent would be the person first entitled to be named guardian of the property. In that capacity, he would be able to petition the court for letters of administration for the estate of his ex-wife. Once appointed, the administrator can then go through all the personal effects and papers of the deceased. In fact, that is part of the duties of an administrator.

Remember that acrimonious divorce and the fight over property? How would you feel knowing that your now her ex-spouse would be able to act as the administrator of your estate?

If you are a divorced  parent of minor children, call Andrea L. Gamalski today to inquire about having a simple Will prepared.  Andrea will gather all the information needed to prepare your will today.  Prices start at $299 for an individual will.

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