Being an executor of a will carries a lot of duties and responsibilities for the deceased person’s estate. An executor is a person nominated by the testator (the person writing the will) to administer his estate after the testator’s death. The executor is also called the personal representative in some states. Although you may be compensated as an executor, most family members serve without compensation, especially when they are also a beneficiary.
Making a mistake as executor may also lead to lawsuits instituted by beneficiaries and can even lead to you, the executor, being personally liable. Having a good attorney to guide you through the process can minimize the risk of personal liability. Here are some duties and responsibilities of an executor:
Locate the will
The first job of an executor is to find the original will. When filing a petition for probate, the original will has to be submitted to the court. Without a will, you cannot be appointed as executor.
In New York, if the original will cannot be found, you need to prove that the will has not been revoked, that the will was duly executed, and submit a complete and true copy of the will. Attempting to prove a lost will can delay your appointment as executor.
Remember that even if the testator nominates you as executor, you cannot begin to serve your duties and responsibilities as executor unless and until the court appoints you.
File the petition for probate
After you locate the original will, the executor can now file the petition for probate. Getting an attorney to assist you in filing this petition will ensure that there will be no delays in your appointment and management of the estate.
Together with the petition for probate, you need to submit a certified copy of the testator’s death certificate and the testator’s funeral bill. By this time, you should also know the value of the deceased person’s estate because the value of the estate will be listed in the petition.
The petition also requires that you notify both the heirs-at-law and the beneficiaries of the will. The heirs-at-law or distributees are required parties in the petition for probate. They either have to execute waivers and consents to the petition or if they refuse to sign this document, the court has to issue a citation to them ordering them to show cause why the reliefs stated in the petition for probate should not be granted. The distributees are required parties because they can object to the probate of or contest the will.
The beneficiaries, on the other hand, are simply given a notice of probate. These beneficiaries are those persons who will receive a gift under the terms of the will. They do not have a right to object to the probate of the will unless they are a distributee or a beneficiary in a prior will who stands to receive more in that prior will.
Notify the banks and government agencies about the death of the testator
The executor, or a family member, should also notify the banks and government agencies about the death of the testator. The banks will freeze the testator’s account until you show them letters testamentary or a certificate that you have been appointed by the court as executor or administrator. If the testator received checks from government agencies after the testator’s death, these government agencies must be informed of the testator’s death and any checks received after the testator’s death must be returned.
Get your letters testamentary or certificate of appointment of executor
Once the petition is granted and the will is admitted to probate, the court will issue letters testamentary to the executor which would allow the executor to perform the duties and responsibilities of his office. You may also get a certificate of appointment of executor which can be presented to the bank and other government agencies where the testator has a recorded asset.
If you foresee that there will be delay in the probate of the will (i.e., there is a will contest or a distributee cannot be located), you may petition the court for the issuance of preliminary letters that will allow you to manage the estate on a limited basis while the proceedings are pending.
Get a tax identification number
Once letters testamentary have been issued to the executor, it is the executor’s duty to get a tax identification number (EIN) from the IRS. This is required to open an estate bank account. All bank accounts of the testator can then be transferred to the estate bank account and all payments of debts can be taken from this bank account.
Gather assets and submit an inventory
Once the executor is appointed by the court, the executor must gather the assets of the testator. Sometimes, these assets may be in the name of a third person, taken before or after the testator died. In this case, the executor has to file discovery and turnover proceedings under SCPA §§ 2103 and 2104 to obtain those assets from other people.
Once all assets have been recovered, it is the executor’s duty to submit an inventory listing the personal and real properties of the testator, together with its corresponding value, within six (6) months from appointment as executor.
File a lawsuit for wrongful death, if applicable
The executor also has the responsibility of filing wrongful death claims that pertain to the estate of the deceased. The executor must be aware of statute of limitations to ensure a lawsuit is filed before the claim of the estate expires. If the statute of limitations is expiring and the nominated executor still has not received his letters testamentary due to delay in probate proceedings, the nominated executor may apply for the issuance of preliminary or temporary limited letters in order to file the lawsuit.
Pay creditors, taxes, and other debts
Before any distribution must be made, it is the executor’s duty to pay all debts of the testator. There is a priority for payment of debts under SCPA § 1811. If the executor makes a mistake on paying a debt with lower priority than a debt with higher priority and no amount is left in the estate to pay the debt with higher priority, the executor can be made personally liable.
The order of priority of debts are:
- Reasonable funeral costs and estate administration expenses
- Federal debts
- State debts
- Property taxes assessed before the person died
- Court judgments, decrees, and bonds issued before death
- All other contractual debts.
Creditors must follow the procedure stated in SCPA § 1803 for the submission of their claims. If creditors do not submit their claims within 7 months from the appointment of the executor, they cannot hold the executor liable for any distributions made to the beneficiaries in good faith.
Sale of personal property and real estate
The executor also has the responsibility of selling the personal and real property of the estate in order to pay off the debts of the deceased. Although the executor does not need approval from the court or the beneficiaries to sell real estate, it is prudent for the executor to be in open communication with the beneficiaries regarding any sale of substantial value to prevent any lawsuits in the future.
Accounting and distribution
After the lapse of the seven (7) month period from appointment of executor to raise creditors’ claims has expired, the executor can now distribute the net estate to the beneficiaries. If the estate is insufficient to pay for creditors’ claims, there is an order of liability for beneficiaries. The executor can get the share of these beneficiaries to pay for the debts of the deceased in the following order:
- Residuary beneficiaries.
- General beneficiaries
- Specific beneficiaries
- Surviving spouse on dispositions under estate tax marital deduction.
The executor is also advised to submit an accounting to the beneficiaries and to request the beneficiaries to execute receipts and releases before making the distribution. This receipt and release will discharge the executor from liability.
Should you need assistance as executor of an estate, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at email@example.com.