In re the Estate of McElroy

110 Misc. 2d 792, 443 N.Y.S.2d 46, 1981 N.Y. Misc. LEXIS 3162

Opinion

OPINION OF THE COURT

C. Raymond Radican, J.

In this application for voluntary administration under the Small Estates Act (SCPA art 13), the decedent is alleged to have died leaving a handwritten will consisting of one sentence in which she leaves her entire estate to her sister-in-law without naming an executor. The sister-in-law, Virginia B. Fitzpatrick, has applied to act as the voluntary administratrix.

SCPA 1303 (subd [b]) provides that the named executor or alternate shall have the first right to act as administrator. If they renounce or fail to qualify, then voluntary administration shall be granted to any adult who would be entitled to letters of administration with the will annexed under SCPA 1418. While the statute literally seems to require that a named executor or alternate renounce or fail to qualify before voluntary administration may be granted, the court is of the opinion that the statute should be liberally , interpreted so as to permit the sole beneficiary to act as the voluntary administratrix. The application is accordingly granted.