Once the Surrogate’s Court issues you Letters Testamentary, you become a fiduciary, legally obligated to collect the decedent’s assets, pay valid debts and taxes, and distribute what remains to the beneficiaries named in the will. With that authority comes personal exposure: an executor who mismanages estate property, fails to account or breaches a duty can be held financially liable and removed by the court.
This page is an overview of what a New York executor faces and how a lawyer protects you in each phase of administration. Where a topic has its own guide, we link to it.
What an Executor Is Required to Do in New York
An executor’s core duties are defined by the Estates, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA). In practice the job runs in a set order.
-
Probate the will and obtain Letters Testamentary
File the will and a probate petition in the Surrogate’s Court of the county where the decedent was domiciled, and give notice to the distributees under SCPA 1403. See our guide to letters testamentary in New York.
-
Marshal the estate’s assets
Locate, secure and take control of bank accounts, real property, investments and personal property.
-
Identify and pay valid debts and claims
Funeral expenses, administration costs and creditor claims are paid in the priority order set out in SCPA 1811.
-
File tax returns
The decedent’s final income tax return, any estate income tax returns, and a New York estate tax return where the estate exceeds the filing threshold.
-
Account to the beneficiaries
Provide a formal or informal accounting of every dollar received and disbursed before distributing.
-
Distribute the remaining assets
Pay the beneficiaries in accordance with the terms of the will.
An executor is held to the standard of a prudent person managing the affairs of another. You are not expected to be perfect, but you are expected to act in good faith, keep estate funds separate from your own, keep accurate records and avoid self-dealing.
How an Executor Can Be Held Personally Liable
Because the role carries fiduciary duties, an executor can be surcharged, meaning ordered to repay the estate from personal funds, for losses caused by misconduct or negligence. The usual sources of liability are commingling estate and personal money, paying a debt that was not actually owed, failing to invest or preserve assets, distributing to the wrong people, and favoring one beneficiary over another. Our overview of breach of fiduciary duty in New York covers how these claims are litigated.
Many honest executors are accused of wrongdoing simply because they were unfamiliar with the rules: taking a statutory commission the beneficiaries did not understand, for example, or using their own money for an estate expense in a way that looked like the reverse. In our experience these misunderstandings are usually resolved by documenting what actually happened and providing a clear accounting.
The Disputes Executors Most Often Face
The same conflicts recur from estate to estate. Each has its own detailed page.
| Dispute | What it involves | Read more |
|---|---|---|
| Will contest | Distributees object to probate on grounds such as lack of testamentary capacity, undue influence, fraud or improper execution under EPTL 3-2.1 | Defending against a will contest |
| Removal proceeding | A beneficiary petitions under SCPA 711 to suspend, modify or revoke your letters, or under SCPA 719 for summary removal | Executor and administrator removal |
| Discovery and turnover | When estate property is allegedly in the wrong hands, the executor or a beneficiary brings a proceeding under SCPA 2103 and 2104 to recover it | Discovery and turnover proceedings |
| Beneficiary-executor conflict | Many disputes are interpersonal and can be defused with transparency and a proper accounting | Resolving beneficiary-executor conflict |
| Spousal elective share | A surviving spouse may elect against the will for the greater of $50,000 or one-third of the net estate under EPTL 5-1.1-A, including certain testamentary substitutes; valuation is often disputed when the spouse overstates the estate | — |
Why Executors Need Counsel in the Surrogate’s Court
Surrogate’s Court practice is procedurally demanding. Probate petitions, citations, accountings and objections must satisfy specific statutory requirements, and a missed step can delay the administration for months. A lawyer representing the executor prepares and files the probate petition and obtains letters efficiently, responds to objections and, where appropriate, moves to dismiss meritless claims before trial, prepares an accounting that withstands beneficiary scrutiny, negotiates reasonable resolutions of nuisance claims without overpaying to make them go away, defends against removal petitions and surcharge demands, and closes the estate with a release or judicial settlement that protects you from future claims.
An executor is generally entitled to retain counsel and pay reasonable legal fees as an administration expense, and to receive statutory commissions under SCPA 2307. You should not have to fund the defense of your fiduciary role out of your own pocket when the claims arise from your proper conduct.
Defensive Planning to Prevent Future Disputes
The strongest defense often begins before death. A will prepared with careful documentation of the testator’s capacity and intent, thorough attorney meetings and proper execution under EPTL 3-2.1 is far harder to challenge. If you are planning your own estate and want to reduce the risk of a future contest, our discussion of avoiding a will challenge explains the safeguards that later help an executor uphold your wishes.
Closing and Settling a New York Estate
Once disputes are resolved, the executor closes the estate by accounting to the beneficiaries and distributing what remains. That can be done informally with signed releases or formally through a judicial accounting in the Surrogate’s Court. For background, see how New York probate works, a sample NYC probate timeline, what happens when there is property in more than one state, and what to do when someone dies.
Frequently Asked Questions
-
Can a beneficiary force me out as executor in New York?
Not without cause. A beneficiary must petition the Surrogate’s Court under SCPA 711 and prove a statutory ground such as dishonesty, improvidence, waste or refusal to account. The court will not remove an executor simply because the beneficiaries dislike them or disagree with reasonable decisions.
-
Am I personally liable for the decedent’s debts?
No. The estate’s assets, not yours, pay valid debts. You become personally liable only if you mishandle the estate, for example by distributing to beneficiaries before paying creditors entitled to priority under SCPA 1811.
-
How much is an executor paid in New York?
Executor commissions are set by statute under SCPA 2307 on a sliding scale based on the value of the assets the executor receives and pays out. The will cannot reduce the statutory commission unless you agree, though some wills provide a fixed fee.
-
How long does it take to settle an estate?
An uncontested estate often takes roughly seven months to a year or more, in part because creditors have a window to present claims. A will contest, a removal proceeding or a contested accounting can extend the timeline significantly.
-
Do I need a lawyer to serve as executor?
You are not legally required to hire one for a simple estate, but most executors retain counsel to handle the Surrogate’s Court filings, protect themselves from liability and respond to objections. The cost is generally payable as an administration expense.
Speak With a New York Estate Attorney
The Law Offices of Albert Goodwin represents executors in the Surrogate’s Courts of New York, Kings, Queens, Bronx, Richmond, Nassau, Suffolk and Westchester counties. If you are facing a will contest, a removal petition or a contested accounting, or simply want guidance on your duties, call 212-233-1233 or email [email protected].
