If you’ve been named by a testator (the person writing the will) as an executor and then the testator dies (now called the decedent), you’re probably wondering, what does an executor of a will do?
As an executor, your first and foremost duty is to have the will probated. You need to locate the original copy of the will and present it to the court for probate. Without the court’s admission of the will to probate, you cannot be appointed as an executor of the estate, and you cannot begin to perform your duties as an executor. So even if you’ve been named as an executor of the will, if that will has not been admitted to probate, you cannot act as an executor unless and until that will is admitted and the court issues you letters testamentary.
If you’ve been named as the executor of a will, immediately consult with an estates lawyer who can help you file a petition to probate the will. Should you need assistance, you can call us at 718-509-9774 or send us an email at email@example.com.
What is an executor?
An executor is a fiduciary nominated by the testator to manage the estate assets, pay the decedent’s debts, and then distribute the remaining assets to the beneficiaries. As a fiduciary, the executor’s duties and responsibilities are governed by law and held to the highest standards. An executor is under a duty to always act in the best interests of the estate and the beneficiaries, even if such action is contrary to the executor’s personal interests. The beneficiaries have a cause of action against the executor in case the executor mismanages the estate assets. For example, if the executor does not file the returns, does not pay the income and estate tax on time, and is then assessed penalties for late filing and payment, the executor can be held personally liable for these penalties. As an executor, it is always recommended to have an experienced estates lawyer beside you to help you navigate laws, rules, and regulations in the collection of assets, payment of debts, and distribution of the decedent’s estate.
What should an executor do first?
As previously mentioned, the first and foremost duty of the executor is to locate the original copy of the will and have it probated. Usually, this original copy is left in the hands of the attorney who drafted the will. Sometimes, it is left in the decedent’s safety deposit box with the bank. If this is the case, you will need to file a petition with the court to search the safety deposit box. If it is not with the attorney-draftsman or in the safety deposit box, it may be at decedent’s home with his belongings. If the decedent lived and died alone, the police might have sealed his apartment or residence. In order to access the residence, you need to file a petition to examine the residence of the decedent for the purpose of locating the will and other insurance policies.
If, despite all the above efforts, you still cannot locate the original will, there is a presumption that the will has been destroyed and revoked, and New York laws of intestacy will apply on who will receive the residuary estate of the decedent. However, if you have a copy of the will and believe that the will has not been revoked, SCPA § 1407 allows you to probate a lost or destroyed will. Consult with an experienced estates lawyer to know your remedies when locating the original will of the decedent.
What else should an executor do?
Once you have located the original will and submitted it to the court for probate, the court will check the will’s genuineness and due execution. If it satisfied that the will is genuine and duly executed, the court will admit it to probate and issue you letters testamentary.
In a petition for probate, the heirs of the decedent who will inherit had there been no will (called distributees) are required to be given notice. These distributees have the standing to object to the will. In some cases, when these distributees will receive nothing in the will, they object to the admission of the will for probate. These cases of will contests can prolong the admission of the will for probate. In the meantime, you can file a petition for the issuance of preliminary letters testamentary so you can begin gathering the decedent’s assets and pay the debts as they become due.
Gathering the decedent’s assets
The decedent’s assets are usually listed in the will. The major asset is normally the residence of the decedent. You can also go to the county clerk of the county where the decedent lived or where you think he has property and request for a search of real estate assets in decedent’s name. They will request for a copy of your letters testamentary before giving you any information, so make sure you have this with you. Real estate needs to be appraised so a value can be included in the decedent’s inventory of assets.
For the decedent’s bank and brokerage accounts, you will mostly discover these through the monthly mail received by the decedent. If it is a fairly new will, it might even be accompanied by a list of all of the decedent’s electronic assets with corresponding passwords – emails, social media accounts, Paypal, bank accounts, brokerage accounts, credit cards, cryptocurrencies, subscriptions, and the like. Sifting through the decedent’s mail will inform you of the decedent’s assets and debts. Banks will not release information to you without the presentation of letters testamentary so make sure you have this on hand at all times. You can also use SCPA § 2103 to find decedent’s assets that are in the hands of the third persons and have them turned over to you.
You need to file an inventory of the decedent’s assets within 9 months from your appointment as executor (issuance of letters testamentary). Remember that properties held under joint tenancy with rights of survivorship, tenancy by the entirety, trust property, and insurance policies with a designated beneficiary are excluded from the estate. An estates lawyer can guide you in determining and identifying which items are considered estate property.
Pay decedent’s debts
One of the primary duties an executor of the will needs to do is to pay decedent’s debts. You have to make sure that the debts presented by creditors are genuine before paying them. Creditors are required to present their claims to the executor within 7 months from the executor’s appointment. Beyond 7 months, the executor will not be personally liable for any estate assets used to pay lawful debts or distributed to the beneficiaries, provided the payments were made in good faith.
Distribution of assets to the beneficiaries
Once all estate debts have been paid and the period for a creditor to file a claim against the estate has lapsed, the executor can begin the process of distributing estate assets to the beneficiaries. Generally, the specific bequests are satisfied first. For example, if decedent would like to leave his Monet to a particular friend or child, this specific bequest is satisfied before any other distribution is made. If that particular item is not in the estate anymore, i.e., a particular car was bequeathed in a will but sold before the decedent’s death, there is a presumption that the gift has adeemed, and the beneficiary is not entitled to its equivalent monetary value. You can consult with an experienced estates lawyer if you need interpretation on a will’s provisions.
Next, general cash bequests are satisfied before the residuary estate is distributed. For example, after giving out the specific gifts, if there is cash remaining in the estate, the cash bequests are distributed. For example, if the decedent leaves $10,000 each to his 5 grandchildren with the residuary estate to the surviving spouse, the executor needs to satisfy the cash bequests to the 5 grandchildren before distributing the residuary estate. If the amount in the bank is not enough to satisfy these cash gifts, the executor is required to sell estate property to satisfy the cash gifts.
Lastly, whatever is remaining after payment of debts and distribution of specific and general bequests is called the residuary estate. The residuary estate is usually distributed last. If the residuary estate is left to the spouse, the surviving spouse should remember that she has a spousal right of election equivalent to the greater of $50,000 or 1/3 of the estate. If the spouse receives less than this amount, the spouse can elect to exercise the spousal right of election under EPTL § 5-1.1a within 6 months from the date the executor was appointed. An experienced estates lawyer can help you navigate issues related to the spousal right of election.
Once the executor of a will has done everything to distribute the estate assets, the executor may file an informal or formal accounting. The executor can file an informal accounting if all beneficiaries sign waivers and releases on the executor’s accounting. If not, the executor can petition the court to file a judicial account in order to be formally discharged and released from any further liabilities. Estate funds are usually used to pay attorney’s fees related to accounting.
Being named an executor of a will is a big responsibility. Laws can be complex and an experienced estates lawyer can assist you in the distribution of the estate because strict time periods need to be observed in certain cases. If you are wondering what an executor in a will does or you need assistance in anything related to a will, 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.