Can the Executor of a Will Take Everything in New York?

The short answer is no. An executor of a New York will does not own the estate; the executor manages it on behalf of the beneficiaries. An executor who takes estate property for personal use, transfers estate assets to himself without authority, or refuses to distribute inheritances is misappropriating money that belongs to others. Under New York law that conduct can amount to a breach of fiduciary duty and, in serious cases, larceny.

Even so, there are a handful of narrow, perfectly lawful situations in which an executor may receive estate property. This page explains when an executor can and cannot keep estate assets, and what beneficiaries and executors in New York City and the surrounding counties should actually do about it. For deeper coverage of related issues, see our pages on breach of fiduciary duty and removing an executor or administrator.

When an Executor Can Lawfully Receive Estate Property

An executor is not entitled to simply help himself to the estate. But New York law recognizes four legitimate ways an executor can end up with estate assets in his own hands.

The executor is the sole beneficiary

If the will leaves the entire estate to one person and that same person serves as executor, then after all debts, taxes and expenses are paid, the remaining assets are his by right of inheritance. Even here, the executor must first satisfy creditors and make any required filings before distributing to himself.

Statutory commissions

An executor is entitled to be paid for the work of administering the estate. Commissions are fixed by SCPA § 2307 on a sliding scale: 5% of the first $100,000, 4% of the next $200,000, 3% of the next $700,000, 2.5% of the next $4,000,000, and 2% of anything above $5,000,000. These commissions are lawful compensation, not theft, but the executor cannot pay himself an amount above the statutory schedule.

A full-price, arm’s-length purchase

An executor may buy an asset from the estate, for example the family home, but only if he pays fair market value and, ideally, obtains the written consent of the other beneficiaries or court approval. Because this is self-dealing, courts scrutinize it closely.

A bequest in the will

If the will specifically leaves the executor a particular gift, he may take that gift like any other beneficiary, after the estate’s obligations are met.

Outside of these defined situations, an executor who keeps estate property for himself is taking money that belongs to the beneficiaries.

When Keeping Estate Assets Becomes Unlawful

The legal term for someone who manages money for others is a fiduciary. New York’s Estates, Powers and Trusts Law governs how an estate fiduciary must behave. EPTL § 11-1.6 requires that “every fiduciary shall keep property received as fiduciary separate from his individual property” and that all transactions affecting estate property be conducted in his name as fiduciary, not in his personal name. Commingling estate funds with personal funds is itself a violation of this duty.

When an executor crosses the line from managing assets to misappropriating them, New York’s Penal Law may apply. Under Penal Law § 155.05, a person commits larceny when, with intent to deprive another of property, he wrongfully takes, obtains or withholds property from its owner, and the statute expressly includes embezzlement. Because the estate (and ultimately the beneficiaries) owns the property, an executor who diverts estate assets to himself can be charged with larceny even if he is also one of the beneficiaries.

What a Surrogate’s Court Can Do

If an executor misappropriates estate property, the consequences are serious. The Surrogate’s Court can remove the executor and revoke his letters testamentary. It can surcharge him, ordering him to repay the estate from his own funds, often with interest. The executor may be ordered to pay his own attorney’s fees personally rather than charging them to the estate, and in some cases to pay the beneficiaries’ legal fees. The Surrogate may also refer the matter to the District Attorney, who can pursue criminal prosecution in the appropriate county court.

What a Beneficiary Should Do If the Executor Is Taking Estate Assets

If you believe a New York executor is helping himself to the estate or hiding assets, you are not powerless. Here is the practical sequence most beneficiaries follow.

1. Request an informal accounting. Start by asking the executor in writing for an accounting that shows what came into the estate, what was paid out, and what each beneficiary’s share is. Many disputes resolve at this stage.
2. Demand a formal accounting under SCPA § 2205. If the executor refuses or stalls, an interested party can petition the Surrogate’s Court to compel an accounting under SCPA § 2205. The court can order the executor to file a full accounting under oath. We cover the process on our estate accountings page.
3. Bring a discovery and turnover proceeding under SCPA § 2103. If assets have been taken or hidden, an interested party can commence a proceeding under SCPA § 2103 to inquire into property believed to belong to the estate and to compel its return. See our discovery and turnover proceeding page.
4. Petition to remove the executor under SCPA § 711. Where the executor has commingled funds, made false statements, wasted estate assets or otherwise breached his duty, an interested party may petition for removal under SCPA § 711. See our executor and administrator removal page for the grounds and procedure.

The burden is generally on the party seeking relief to show, by a preponderance of the evidence, that the executor breached a duty or holds estate property. Documentation — bank records, the will, deeds and correspondence — is critical.

What an Executor Should Do If Falsely Accused

Being an executor is exposed and often thankless. If a beneficiary accuses you of taking estate assets, the best protection is good record-keeping and transparency.

Keep estate funds in a dedicated estate account and never mix estate money with your own; EPTL § 11-1.6 requires it. Pay only legitimate estate expenses — debts, taxes and reasonable administration costs — from estate funds, and keep receipts. If you purchase an estate asset, pay full market value and get written consent or court approval, and document the transaction.

Before making final distributions, provide each beneficiary with an informal accounting and obtain a signed receipt and release confirming they are satisfied with their share. This is the single most effective way to close the estate and prevent later litigation. When releases cannot be obtained voluntarily, a judicial accounting allows the court to approve your administration and discharge you.

Where These Cases Are Heard in New York City

Estate disputes are heard in the Surrogate’s Court of the county where the decedent lived at death. In New York City that means New York County (Manhattan), Kings County (Brooklyn), Queens County, Bronx County or Richmond County (Staten Island), each with its own Surrogate’s Court. Contested accounting, turnover and removal proceedings commonly take many months to well over a year, depending on the complexity of the estate, the volume of discovery and the court’s calendar. A simple compelled accounting may resolve relatively quickly; a fully litigated turnover and surcharge proceeding can take considerably longer.

Frequently Asked Questions

Can an executor who is also a beneficiary still be prosecuted for theft?

Yes. The estate, not the executor, owns its property until distribution. Diverting estate assets to himself before the estate is properly settled can expose even a beneficiary-executor to a surcharge and potential criminal larceny charges under Penal Law § 155.05.

Is it legal for an executor to pay himself commissions?

Yes, within limits. SCPA § 2307 sets the statutory commission rates. Paying himself the amount the statute allows is lawful compensation; paying himself more than the schedule permits is not.

Can an executor buy the estate’s house?

Potentially, but only at fair market value and ideally with the written consent of the other beneficiaries or court approval. Because it is self-dealing, the transaction will be closely scrutinized.

What is the first step if I suspect the executor is taking estate assets?

Request an accounting in writing. If the executor refuses, petition the Surrogate’s Court to compel a formal accounting under SCPA § 2205, and consider a discovery and turnover proceeding under SCPA § 2103.

Speak With a New York Estate Litigation Attorney

If you are a beneficiary who believes the executor is taking more than his share, or an executor who is being wrongly accused, we can help you understand your rights and the right procedure under New York law. We handle estate accounting, discovery and turnover, and removal proceedings in the Surrogate’s Courts throughout New York City and the surrounding counties. Call the Law Offices of Albert Goodwin at 212-233-1233 or email [email protected].