A relative/friend/neighbor has died.
How should the residence and possession of the deceased person be protected before Surrogate’s Courts proceedings have begun?
Answer
Acting to Protect the Estate
After a person dies, their possessions become property of their estate. The possessions must be inventoried and then distributed according to a will (if there is one) or according to the requirements of the Estates, Proceedings and Trust Law and Surrogate’s Court Procedure Act.
The residence and property will need to be secured to prevent pilfering and damage; locks may have to be changed. Funeral expenses will need to be paid. These tasks may need to be done before the Surrogate's Court appoints a personal representative, often called a fiduciary, executor, or volunteer administrator.
The Surrogate's Court Procedure Act §103 (21) includes "voluntary administrator" and "temporary administrator" under the definition of "fiduciary."
Surrogate's Court Procedure Act § 1306 (3) gives a voluntary administrator in a small estate proceeding the following powers and duties:
For the purpose of this article, a voluntary administrator shall be deemed to be the fiduciary of the estate until another fiduciary is appointed, and except as hereinafter provided, the voluntary administrator shall have the rights, powers and duties with respect to personal property of an administrator duly appointed for the estate. The voluntary administrator shall have no power to enforce a claim for the wrongful death of or a claim for personal injuries to the decedent.
The estate fiduciary has the responsibility to protect the property and can act immediately to safeguard the property of the deceased before appointment. If the executor fails to protect the estate, the court may surcharge them.
When there is a will, the authority to act to protect the estate before probate is also defined in Estates Powers and Trust Law § 11-1.3 Power and duty of executor before probate:
An executor named in a will has no power to dispose of any part of the estate of the testator before letters testamentary or preliminary letters testamentary are granted, except to pay reasonable funeral expenses, nor to interfere with such estate in any manner other than to take such action as is necessary to preserve it.
The executor nominated in the will should apply promptly for letters. If there is no executor named in a will, some other party should apply for temporary letters. If there is no person available, the public administrator will take on the responsibility.
If property has been removed from the estate, the estate fiduciary will have the authority to file an SCPA 2103 proceeding requesting a court order for discovery of real and personal property.
To summarize: " The personal representative's principal duties are to bring estate assets under control, to convert sufficient assets to cash to meet the estate's requirements for payment of debts, expenses, taxes and legacies, and to distribute the estate. § 13:1. Principal duties of the personal representative, 1 Harris N.Y. Estates: Probate Admin. & Litigation § 13:1 (6th ed.)
New York City
In New York City, the Police Department may seal the apartment of a deceased person. Follow the instructions for each borough on unsealing the apartment for temporary access.
Outside of New York City
Local police may have sealed the deceased person’s apartment; contact them for procedures.