In responding, I assume you are contacting me from South Carolina and that the other heir is in the same degree of relationship as you are with the person whose estate you want to represent.

If the above is correct, each of the heirs are equally entitled to serve as personal representative. Absent an agreement by the heirs as to who will serve, you will have to proceed by a formal proceeding, with notice to the other heir, and a hearing to be held in front of the probate judge to decide who will be most qualified to serve.

At this point, you should start thinking about having an attorney represent you. An attorney can explain the process to you and the other heirs, possibly clear up some misunderstandings or misconceptions, and work out an agreement on who will serve as personal representative. There is also a procedure available where both heirs can serve as personal representative, which can reduce the paperwork required to wind up the estate.

Absent an agreement by the heirs otherwise, the Probate Court may require a bond to be filed, which is another hurdle to deal with and will result in increased expenses. Furthermore, to obtain a bond requires a credit worthy and trust worthy individual, the bonding companies will check into personal backgrounds.

Now the disclaimer. I have done my best to generally answer your question. But it is impossible to provide comprehensive legal advice over the internet. The facts you have given me were limited, and I made several assumptions in trying to answer your question. I strongly advise you to consult with an attorney to help you. No attorney-client relationship arises from this communication.

The current default distribution rule in New York is by representation.

EPTL 2-1.2 provides that in any trust or Last Will executed after August 31, 1992 where property is left to “issue” without any qualifying language (per stirpes, per capita, or by representation), the default is by representation.

EPTL 2-1.2 also provides that any trust or Last Will executed prior to September 1, 1992, the default rules are per capita if the issue are in equal degree of consanguinity, or per stirpes if the issue are in unequal degree of consanguinity. Thus, it is the date that the Last Will or trust was executed that determines what the default rule will be.

EPTL 4-1.1 provides that after August 31, 1992 property passing under intestacy passes to issue by representation.

In New York, today, if you say nothing about how you want your property distributed, is it by default by representation?

Thank you.

Allison