Before the Court is the uncontested petition, dated May 15, 2017, but filed over one year later on August 16, 2018, requesting appointment of an administrator d.b.n. of the estate of Decedent. Petitioner, Iwona M. Piotrowski, is the ex-wife of Decedent and the guardian of the property of their son, Decedent’s only distributee, M.P.. Petitioner proposes that Dorota Parys be appointed as the administrator d.b.n. pursuant to SCPA §1007. The following papers were considered:1. Petition for Letters of Administration d.b.n. by Iwona M. Piotrowski, dated May 15, 2017;2. Waiver of Citation, Renunciation and Consent to appointment of administrator d.b.n. by creditor of the decedent, Assumma-Shankey Funeral Home, dated April 27, 2017;3. Combined Oath and Designation of Dorota Parys, proposed administrator d.b.n., dated May 12, 2017;4. Separation Agreement, submitted with the original petition for administration.BackgroundDecedent and Petitioner married in 2002. They had one child, M.P., born in 2003. Decedent and Petitioner entered into a formal separation agreement on March 30, 2005 (the “Separation Agreement”). Per the Separation Agreement, each party expressly waived the right to act as executor or administrator of the other’s estate, or to receive letters of administration in each other’s estates. See id. “Mutual Release and Discharge of Claims in Estates” at page 16-17.Decedent died intestate on January 26, 2012 a resident of Rockland County. He was predeceased by his parents and had no siblings. Having been advised that she was barred by her waiver in the Separation Agreement from serving as administrator, Petitioner then filed a petition for letters of administration on September 27, 2012, naming her sister, Ewa Czekanski, as the proposed administrator. The petition identified M.P. as the only distributee of the estate. The petition also identified two pieces of real property, both located in Pearl River, that passed by intestacy to M.P..No opposition was filed, and this Court appointed and issued limited letters of administration to Ms. Czekanski on January 25, 2013. On June 7, 2013, Ms. Czekanski petitioned to sell the property on North Main Street, Pearl River, for $390,000.00. This court appointed a guardian ad litem for M.P. The GAL recommended that the Court grant the petition. On October 7, 2013, this Court authorized the sale of the property upon filing of proof of a bond by the administrator. A deed dated December 2013 memorializing the transfer was filed with the Rockland County Clerk on December 31, 2013.The sale of the second property, located on Bogert Avenue, was not pursued at the same time.1 In 2016, Ms. Czekanski passed away from leukemia. Iwona Piotrowski was appointed as the administrator of her sister’s estate on May 1, 2018. On August 3, 2018, Petitioner filed a petition as the administrator of Ms. Czekanski’s estate to settle Ms. Czekanski’s account as administrator of Decedent’s estate. Still believing that the waiver in the Separation Agreement prevented her from serving, Petitioner also sought an alternate family member of Decedent’s to serve as the administrator d.b.n. Petitioner proposed Dorota Parys, who resides in Eugene, Oregon and is listed as a great-aunt of Decedent on the petition. Ms. Parys filed a waiver and consent to the appointment and no one filed opposition.DiscussionUpon examining the petition, the Court was concerned about the efficacy of appointing a fiduciary who was both a distant relative and whose lack of proximity to New York might make administration inefficient. While it is not unusual for transactions and communications to be handled remotely, the distance between Oregon and New York, together with the Petitioner’s delay in filing the petition for over one year after it was originally dated, led the court to consider whether an alternate fiduciary appointment might help speed administration. Therefore, sua sponte, the Court examined whether Petitioner could be appointed as administrator, despite the waiver in the Separation Agreement, as she would be the most logical appointee.The Surrogate Court has an obligation to ensure that the proper person is administering an estate. See Matter of Young, 38 Misc 3d 1222(A), 2013 NY Slip Op 50217(U) at 5 (Surr. Ct. Nassau Co. 2013); Estate of D’Onofrio, 97 Misc 2d 250, 252 (Surr. Ct. Bronx Co. 1978). When the office of administrator becomes vacant, the Court may grant letters of administration d.b.n. to an eligible person on the same grounds as an application for original letters of administration. See SCPA §1007 (1).SCPA §1001, which governs the application for original letters of administration, requires that letters be issued to persons who are distributees of an intestate decedent, and who are eligible and qualify, in a specified order. If the sole distributee is an infant, the infant’s fiduciary shall be granted letters of administration. See id. §1001 (2). The definition of a fiduciary includes a guardian. See SCPA §103(21). While there is no express statutory preference in the granting of letters of administration as between the guardian of the person and the guardian of the property of an infant distributee, see Baker v. Bronx Lebanon Hosp. Ctr., 53 AD3d 21, 24-25 (1st Dept. 2008), the general guidance to give only persons interested the right to administer suggests a preference in favor of the guardian of the infant’s property. See Matter of Blowstein, 147 Misc. 111 (Surr. Ct. Bronx Co. 1933).Therefore, per SCPA §1001(2), the letters should issue to the guardian of the property of Decedent’s sole distributee, his son, M.P.. Petitioner, M.P.’s mother, was appointed as the guardian of his property on July 30, 2012. As such, she is eligible to be appointed as the administrator d.b.n. of Decedent’s estate. However, as discussed above, the Separation Agreement includes a clear and unequivocal statement that “each party hereby forever waives the right to act as executor or administrator of the other party’s estate. Each of the parties hereto waives any right to letters of administration in each other’s estates.” Id. at 17. The Court must consider whether this waiver, which appears to disqualify Petitioner on its face, prevents her from being appointed administrator d.b.n. in her capacity as the fiduciary for her son.In 2017, Albany County Surrogate’s Court faced a similar situation. There, a brother of the decedent opposed the administration petition filed by the decedent’s ex-wife, who was guardian of the property of the decedent’s sole distributee, an infant son. See Matter of Walsh, Jr., 2017 NYLJ LEXIS 2456, NYLJ Aug. 29, 2017 at 17 (Surr. Ct. Albany Co. 2017). There, as in this case, a separation agreement between the decedent and the ex-wife stated that the parties waived the right to act as the executor or administrator of the other party’s estate. But the court found that the separation agreement did not bar the petitioner from serving as the administrator because she was petitioning as the guardian of the infant distributee, not as the ex-wife of the decedent. See id. at *5 (“[O]nce an individual is appointed as guardian of an infant distributee, that person is eligible to be appointed as administrator of the decedent’s estate regardless of whether the guardian and the decedent were married, divorced, or had no relationship at all.”). See also, Matter of Porrata, 89 Misc 2d 663, 665 (Surr. Ct. NY Co. 1977) (“waiver of rights of inheritance by spouses in agreements relative to separation and termination of marriage…should be strictly construed”). Therefore, the objections were dismissed and the ex-wife was appointed as the administrator based on her status as the guardian of the property of the infant distributee. See Matter of Walsh, Jr.Here, as in Matter of Walsh, Jr., the Court finds that Petitioner is qualified to serve in her representative capacity as the guardian of M.P.’s property, and that the Separation Agreement is no bar to that qualification. So long as her guardianship authority continues, i.e., until M.P. reaches the age of majority, she may serve as the administrator d.b.n. Further, it is in the best interest of the estate and the distributee for Petitioner to be appointed. For the estate, it is more efficient to have an administrator who can easily appear in the pending foreclosure action and finalize the pending accounting. The proposed administrator d.b.n. resides in Eugene, Oregon and has played no role in this matter. Petitioner, on the other hand, lives locally and has been involved in the estate since 2012. Second, as guardian of the property of the sole distributee, Petitioner already has a fiduciary duty to protect her son’s best interest vis a vis the estate.Therefore, notwithstanding Petitioner’s application for the appointment of Dorora Parys, the Court finds that appointing Petitioner herself as administrator would be in the best interest of the efficient administration of estate and protection of the infant. Upon her due qualification, the clerk is respectfully directed to issue letters of administration d.b.n. to Petitioner Iwona Piotrowski based on her status as guardian of the property of the infant distributee, which letters shall expire upon the infant’s eighteenth birthday in 2021.The foregoing shall be the order of the Court.Dated: December 10, 2018New City, New YorkHON. KEITH J. CORNELLRockland County Surrogate
