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An executor of a will, from the words itself, executes the will. To the execute the will, the nominated executor must submit the will for probate. Once the will is admitted as genuine and authentic, the nominated executor is then issued letters testamentary, which gives the executor the power to marshal the assets of the deceased, pay the estate taxes, debts, and expenses, and distribute the remaining proceeds to the beneficiaries.
Summary of what the executor does
Take the Will Through the Probate Process
The first duty of the nominated executor in a will is to submit the will for probate. If the will is not admitted to probate, the nominated executor will not be appointed as the executor by the probate court. Without such appointment, the nominated executor has no powers.
Thus, the first and most important role of a nominated executor in a will is to ensure that the testator’s will is admitted to probate. Submitting a will for probate can be a complex matter. For this reason, it is important for the executor to obtain the services of an experienced probate attorney so the executor can immediately receive the letters testamentary and begin the process of administration. Getting an inexperienced probate attorney may lead to delays in the issuance of letters testamentary.
In this period of submitting the will to the probate court, many complications can happen. First, the distributees (heirs-at-law) of the testator must be notified of the probate of the will. If the distributees do not consent to the probate of the will, they will be issued citations or an order to show cause on why the will should not be admitted for probate. Here, objections can be made by the distributees, especially those who have been omitted from the will or stand to receive less in the will than if there was no will. This can prolong the process of getting the will admitted to the probate. In the meantime, while objections may be pending, the executor can request the court for preliminary letters testamentary to allow the executor to gather the assets of the decedent and pay estate debts and expenses.
Administer the Estate
Once the will is admitted to probate, the executor will be issued letters testamentary and will then have the power to gather the assets of the decedent and pay estate taxes, debts, and expenses. When gathering the assets of the decedent, the executor might notice that some assets are missing. When this happens, one of the duties of the executor is to discover where these assets went and seek the turnover of the assets from third parties. A probate litigation attorney will be able to assist the executor in filing a discovery and turnover petition to discover where the testator’s assets are and to seek the turnover of these assets from third parties with possession.
The executor also pays estate taxes, debts, and expenses from estate assets. The executor, however, has to observe a hierarchy in the payment of debts and funeral expenses. In New York, this hierarchy can be found in SCPA § 1811. If the executor does not observe this hierarchy and later on discovers that the assets are not enough to pay for the estate liabilities, the executor can be held personally liable for the charges.
Distribute Proceeds to the Beneficiaries
In New York, there is a 7-month period for creditors to file their claims with the estate. After this 7-month period, the executor can distribute in good faith the remaining proceeds to the beneficiaries without incurring any personal liability. In order to avoid personal liability and future lawsuits, the executor needs to have all the beneficiaries sign a Receipt and Release before they disburse the funds.
Before the executor distributes the proceeds, the executor will submit an informal accounting to the beneficiaries and ask the beneficiaries to sign a receipt and release agreement, agreeing to the informal accounting. If the beneficiaries agree to the informal accounting, the executor will distribute the proceeds to the beneficiaries upon receipt of the beneficiary’s receipt and release.
However, there are times when beneficiaries do not agree to the informal accounting. In that case, the executor must then file a petition to submit the formal accounting with the court. This petition requires the expertise of a probate accounting attorney because the schedules required by the probate court are meticulous and detailed. At this point, the beneficiaries may object to the accounting of the executor, and the executor must defend his accounting to the court.
An executor’s duties will depend on the particular stage of the probate process. It is important for the executor to be assisted by an experienced probate attorney in every stage of the process to minimize any risk that the executor be charged personally with liability for not observing the correct procedure.
Should you need a probate attorney, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
