To become an executor of an estate, four things have to happen: (a) you must be nominated by a testator (someone writing the will) as an executor; (b) you must survive the testator (i.e., you did not die before the testator); (c) you must submit the will to the court together with a petition for probate; and (d) the court must issue you letters testamentary that allow you to perform the duties of an executor.
Nomination as an executor
The first step to become an executor of an estate is to be nominated by a testator as executor of his will. The testator is the person writing the will. The executor is the person the testator nominates to administer his will. Just because the testator names you as executor of the will does not mean you are the executor of the will. Hence, the word “nominate.”
When the testator nominates you as executor, you are merely given the first preference to be the executor. You are not a n executor until you are appointed executor by the court. Thus, being nominated by the testator as executor is only the first step to being an executor.
Surviving the testator
The second step, after being nominated in the will as executor, is surviving the testator. If you predecease the testator (i.e., you die before the testator dies), you cannot serve as an executor because you are no longer alive. For this reason, not only do you need to be nominated, you must also survive the testator to be executor.
Filing the petition for probate
The third and most important step to being an executor is filing the petition for probate with the court. Each state will usually have their own format for the petition. It is usually the executor who is the petitioner (proponent) in the petition for probate. It is advisable to get a lawyer to help you file this petition because any missing document or information lacking in your petition can cause significant delays.
Here are some important things you need to know about the petition for probate:
- You need to file the petition in the Surrogate’s Court of the county where the deceased person last resided. The deceased person’s last place of residence can be found in the death certificate. If the deceased was living in a nursing home at the time of death, the deceased person’s place of residence prior to moving to the nursing home is considered the deceased’s last place of residence.
- Together with the petition for probate, you need to submit the original will. Do not remove the staples of the will, even when you are photocopying it. The original will must be left intact.
- Even if the deceased person’s heirs (the “distributees”) are not listed in the will, they must be notified of the petition for probate. These distributees must execute waivers and consents to the petition for probate. Otherwise, the court must issue to them a citation directing them to show cause why the reliefs stated in the petition for probate should not be granted. These distributees have the right to object to the probate of the will. In New York, who the distributees are depend on who survived the deceased person, as provided in EPTL § 4-1.1:
|If decedent is survived by:||The following persons shall receive decedent’s estate (the distributees):|
|Spouse and issue (children and their descendants)||$50,000 plus ½ to spouse, and balance to children or children’s descendants by representation|
|Spouse and no issue||Everything to the spouse|
|Issue and no spouse||Everything to the issue by representation|
|No spouse, no issue||Everything to the surviving parents|
|No spouse, issue, or parents||Everything to the issue of the parents by representation|
|No spouse, issue, parents, or parents’ issue||To the grandparents or issue of grandparents by representation, ½ each to the paternal and maternal side|
- If you foresee significant delays in the admission of the will to probate (i.e., someone is contesting the will, a distributee cannot be located, at least one distributee refuses to sign a waiver and consent and a citation has to be issued, etc.), you can request the court for the issuance of preliminary letters testamentary to allow you to already perform the duties of an executor.
You can find out more information about the petition for probate here: https://nyestateslawyer.com/2017/06/24/new-york-letters-testamentary/
Court appointment as executor
You can only begin performing your duties as executor if you are appointed by the court. This is called the issuance of letters testamentary.
Aside from being nominated in the will, the proposed executor under SCPA § 707 must comply with the following eligibility criteria in order to be appointed by the court as executor:
- must not be a minor
- must not be an incompetent (or must be of sound mind)
- must be a resident of New York (or if a non-resident, must have a co-executor or co-administrator who is a resident of New York)
- must not be convicted of any felony
- must not have a history of substance abuse, dishonesty, improvidence, want of understanding, or otherwise unfit for the execution of the office
- discretionary on the part of the court: must be able to read and write in the English language
Usually, when the nominated executor is not a resident of New York, the lawyer is named as co-petitioner and co-executor so that the nominated executor can serve.
Once the court determines that you are eligible and not disqualified to be executor, the court issues you letters testamentary. You may ask the court for a Certificate of Appointment as Executor. This document is showed to banks and other government agencies to allow you to perform your duties as executor. It is better to get many copies because one copy is usually submitted per asset of the deceased person.
With this certificate, you can do the following things, to name a few:
- obtain a tax identification number for the estate;
- open a bank account for the estate;
- access the bank accounts of the deceased;
- sell real property of the deceased;
- pay debts and taxes of the deceased;
- manage other assets of the deceased;
- distribute the net estate to the beneficiaries.
Should you need assistance in becoming an 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 firstname.lastname@example.org.