A family in Manhattan recently called my office. Their father had passed away, leaving a will that clearly named his eldest son as the executor. The problem? He also owned a small vacation home in New Jersey, an asset his New York will could not directly control. This family was about to learn that settling an estate is not a single process, but a path determined by two things: the planning that was done and the geography of the assets left behind.
All estate administrations for deceased New York residents pass through the Surrogate’s Court. The court’s role is to validate the process, appoint a fiduciary to manage the estate, and ensure creditors are paid and assets are distributed correctly. But how the court proceeds depends entirely on the circumstances the decedent left for their family. In my experience, nearly every estate follows one of three fundamental paths.
When There Is a Will: Testate Administration
The most straightforward path is a testate administration. This occurs when the person who passed away—the “decedent”—left a valid Last Will and Testament. The will is a set of instructions for the court and the family. It names an Executor, the person or institution entrusted with carrying out those instructions. It specifies who should inherit which assets. It may even name a guardian for minor children.
When we present a valid will to the Surrogate’s Court, we are asking the judge to formally appoint the nominated Executor. Once appointed, that Executor has a fiduciary duty—the highest standard of care under the law—to gather the estate’s assets, pay its legitimate debts, and distribute the remaining property according to the will’s terms. This is the path of intention. It reflects a deliberate effort by the decedent to control their legacy and provide a clear map for their family to follow.
When There Is No Will: Intestate Administration
When a person dies without a will, they are said to have died “intestate.” In this scenario, there is no map. There are no instructions. The family must instead turn to New York State law to determine how the estate is handled. The court will appoint an “Administrator”—typically a close relative—to serve the same function as an Executor, but the rules for distribution are rigid and absolute.
Those rules are laid out in the Estates, Powers and Trusts Law (EPTL) § 4-1.1. This statute is the state’s default will for anyone who did not write their own. It dictates a strict hierarchy of inheritance. If there is a spouse and children, the spouse receives the first $50,000 plus half of the remainder, with the children sharing the rest. If there are no children, the spouse inherits everything. If there is no spouse, it goes to the children, then parents, then siblings.
This formula can create outcomes the decedent never would have wanted. It makes no exceptions for a long-estranged child, a devoted unmarried partner, or a favorite niece who was like a daughter. Intestacy is the state’s plan, not your family’s.
When Assets Cross State Lines: Ancillary Administration
This brings us back to the family with the New Jersey vacation home. Because real estate is governed by the law of the state where it is located, a New York Surrogate’s Court has no jurisdiction over it. The primary probate proceeding would happen in New York, but a second, parallel proceeding—an ancillary administration—must be opened in New Jersey to transfer the title of the house.
This is common for clients who own property in Florida, a business interest in Connecticut, or mineral rights out west. Each out-of-state asset may require its own ancillary proceeding, which means retaining local counsel in that state, additional court fees, and significant delays. It adds a layer of cost and complexity that can often be avoided with prudent planning, such as placing out-of-state properties into a trust.
Stewardship Requires a Clear Path
Each of these paths leads to the same destination: the settlement of an estate. But the journey can be vastly different. One is guided by the clear, intentional voice of the decedent. The others are dictated by state statute or complicated by multi-state court proceedings. Understanding which path an estate is on is the first step toward responsible stewardship.
If you are the named Executor in a will, or if you must petition the court to become an Administrator for a family member, the process begins with the documents at hand. A review of the will and a list of assets is the first step in determining which path the estate must follow and what your duties will be.
