This article focuses on the rules of estate administration in the Surrogate’s Courts that are applicable in situations that are fairly common for New York City personal injury lawyers. It can be described as follows: Your client is the unmarried mother of several minor children, all born in New York City. The father of the children (the Decedent) tragically has been killed in an automobile accident in New York City. The Decedent never established his paternity of his children in family court but lived with the mother continuously for the entire lives of his children. The Decedent is originally from somewhere in Central America, perhaps Mexico, and crossed into the United States somewhere near San Diego or El Paso. He worked successfully for cash as a day laborer and never filed income tax returns. He, together with the earnings of the mother who cleans houses also for cash, provided for the family in a fairly meager manner. New York being a sanctuary city, there was no need to obtain any governmental approval or interaction beyond the voluntary application by the mother of the children for public assistance, which she receives. Little is known about the family relationships of Decedent beyond his children and their mother, perhaps due to the firm reticence of the mother to talk about immigration status. The Decedent never created a will or any other legal documents to transmit his “estate”, which amounts to cash and little else of monetary value. Each birth certificate of the minor children lists the Decedent as “Father”. The automobile accident involved a taxi cab whose maximum liability coverage is $75,000.
The mother hires personal injury attorneys (PI Lawyer) in order to bring on the lawsuit against the cab company. The wrongful death case seems strong because the Decedent was struck while a pedestrian in a cross walk with a green light in his favor. The insurance company has already signaled that an offer of the policy is likely. The recovery would go to the heirs of the Decedent or as New York describes them, the “distributees”. EPTL §4-1.1. In this case, since the mother is not a spouse of the decedent, the closest living distributees are the minor children of the Decedent. PI Lawyer first discovers that an Administrator of the estate of the Decedent is required to bring on the wrongful death lawsuit, which must be brought within two years of the date of death. EPTL §5-4.1 provides in part:
“The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. Such action must be commenced within two years after the decedent’s death …”
