What Is an Executor of a Will in New York?

An executor is the person a will names to settle the estate of the person who died, called the testator. In New York, being named in a will does not give anyone authority. The nominated executor has to file the will with the Surrogate's Court in the county where the testator lived, prove the will and receive Letters Testamentary. Until the court issues letters, the nominated executor cannot sign for the estate, open estate accounts, sell property or pay out money on the estate's behalf.

This page is our New York executor guide. It covers who may serve, how appointment works, what to do in the first months, the powers and limits that New York law sets, and how executors are paid. Where a topic has its own detailed page on this site, we give the New York rule in short form and link to that page.

Prepared by the Law Offices of Albert Goodwin, a New York trusts and estates and Surrogate's Court practice. Statute citations link to the official text on the New York State Senate website. This page is general information, not legal advice for your estate.

Executor, Administrator and Administrator c.t.a.

New York uses different titles depending on whether there is a will and whether the named person can serve:

• Executor: named in the will and appointed by the Surrogate's Court through Letters Testamentary.
• Administrator: appointed when there is no will, through Letters of Administration. See administrators of estates without a will and Letters of Administration.
• Administrator c.t.a.: appointed when there is a will but no named executor is able or willing to serve. See administrator c.t.a.
• Ancillary executor: appointed in New York when the testator lived in another state or country but left property here. See ancillary letters.

The duties described below apply in large part to all of these fiduciaries. The difference lies in how each one is appointed.

Who Can Serve as Executor in New York

A testator can name almost anyone: a spouse, an adult child, a friend, a lawyer or a bank. The Surrogate's Court will still check the nominee against SCPA 707. Under that section, letters may not issue to:

• A minor: anyone under 18.
• An incompetent: a person who has been judicially declared incompetent.
• A non-domiciliary alien: a non-U.S. citizen who does not live in New York. The statute has limited exceptions, including court discretion where the person serves with a New York co-fiduciary.
• A felon: a person with a felony conviction. In some cases a certificate of relief from disabilities or a certificate of good conduct under the Correction Law can remove this bar. See can a felon be an executor or administrator in New York.
• A person found unfit: someone the court finds unqualified because of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit.

A U.S. citizen who lives outside New York can serve. If an interested party believes a nominee is ineligible, that party can file objections to the grant of letters under SCPA 709. Courts give weight to the testator's choice, so the objecting party carries the burden of proving unfitness. Proof that a beneficiary dislikes or distrusts the nominee is not enough.

Many wills say the executor may serve without bond, and New York courts usually honor that. The court keeps discretion to require a fiduciary bond in some situations, such as when the nominee lives out of state or has a history of financial trouble. A bond is an insurance-type guarantee that protects the estate if the executor mishandles assets.

A testator can name a successor executor in case the first choice dies, declines or is disqualified. A testator can also name co-executors who serve together. Co-executors generally have to act jointly on estate business, which can slow things down when they disagree. See executor and beneficiary conflicts.

Declining the Job: Renunciation Versus Resignation

Nobody is required to serve. How a nominee steps aside depends on timing.

• Renunciation, before appointment: A nominated executor who does not want the job signs and files an acknowledged renunciation with the Surrogate's Court before letters issue. This is simple and inexpensive. The successor executor named in the will, if any, then petitions. If no successor is named, someone petitions for letters of administration c.t.a.
• Resignation, after appointment: Once letters have issued, the executor cannot just walk away. Under SCPA 715 the executor petitions the court for leave to resign and must account for everything handled up to that point. The court decides whether to accept the resignation and who will take over.

If you have doubts about serving, raise them before you file the probate petition. A renunciation costs far less than a resignation and accounting later.

Getting Appointed: How the Probate Steps Fit Together

Each step below has a detailed page on this site. This section gives the New York rule in short form so you can see how the pieces connect.

Letters Testamentary

Letters Testamentary are the court document that gives the executor authority to act. The petitioner files the original will, a certified death certificate and a probate petition with the Surrogate's Court in the county of the testator's domicile. After the will is admitted to probate, the court issues letters. Banks, brokerages, title companies and government agencies will ask for a recently dated certificate of letters, which the court clerk issues for a small per-certificate fee. For the full process, see Letters Testamentary attorneys and our overview of New York Letters Testamentary.

Preliminary Letters

If probate will be delayed, for example because of objections or missing paperwork, the court can issue preliminary letters testamentary under SCPA 1412. Preliminary letters let the fiduciary protect and collect assets. They do not allow distributions to beneficiaries, and the court usually limits them in other ways. In our practice, Surrogate's Courts have become more reluctant to grant preliminary letters because of the extra court work they create. We request them only when an asset needs attention that cannot wait, such as a sale contract, a business or a vacant property.

Notice, Waivers and Citations

Under SCPA 1403, the petitioner must cite the testator's distributees (the relatives who would inherit with no will). The petitioner must also cite beneficiaries of earlier wills whose gifts are reduced or eliminated by the will being probated. Beneficiaries under the propounded will who are not otherwise cited receive notice of probate under SCPA 1409. Anyone who must be cited can sign a waiver and consent instead. If someone will not sign, the court issues a citation with a return date. That person can then appear and object. For more detail, see our page on administrator letters and notice.

Proving the Family Tree

The court needs to know who every distributee is, because those people must be cited or must waive. When the family tree is simple, the petition itself is often enough. When the testator had no spouse or children, or when distant relatives inherit, courts often require an affidavit of heirship from a disinterested person who knows the family. See affidavit of heirship and when an affidavit of heir is required.

Court Filing Fees

The probate filing fee is set by SCPA 2402 and depends on the size of the estate that passes through probate. Under the current schedule, the fee is $45 for estates under $10,000 and $1,250 for estates of $500,000 or more, with graduated amounts in between ($75, $215, $280, $420 and $625). Certificates of letters carry a separate per-certificate charge. Fees change from time to time, so check the court's current schedule before you file.

How Long Appointment Takes

Timing varies by county and by case. New York County (Manhattan), Kings (Brooklyn), Queens, the Bronx, Nassau, Suffolk and Westchester each have their own Surrogate's Court. Each court has its own staffing, caseload and clerk practices. In our experience, an uncontested probate with all waivers signed moves much faster than one that needs citations served on missing or out-of-state relatives, or one where the clerk questions the kinship proof. Courts also review wills for execution problems, such as a missing attesting witness affidavit. Those reviews can add rounds of correspondence. For a realistic sequence of events, see a sample NYC probate timeline. For borough-specific help, see our Brooklyn probate page.

A New York Executor's First Months: A Practical Checklist

The order below follows how New York estates usually unfold. Your estate may call for different steps.

The First 30 Days

• Find the original signed will. New York courts need the original, not a copy. If it may be in the testator's safe deposit box, the court can order the box opened to search for it under SCPA 2003.
• Order several certified death certificates.
• Secure the home, vehicles and valuables. Confirm the homeowner's insurance stays in force, because many policies change coverage when a home is vacant. See access to a house after death and access to an apartment after death.
• Make a list of every distributee and every beneficiary, with addresses.
• Gather statements for bank, brokerage and retirement accounts, deeds and insurance policies. Note which assets have beneficiary designations or joint owners, because those usually pass outside probate. See avoiding probate in New York.
• Do not distribute anything, and do not mix estate money with your own.
• Prepare and file the probate petition.

From Appointment to About 90 Days

• Get certificates of letters and an employer identification number (EIN) for the estate.
• Open an estate checking account titled in your name as executor.
• Collect assets: close or retitle accounts, collect refunds, and stop recurring payments.
• Get date-of-death values for securities, and appraisals for real estate and significant personal property.
• Identify debts and claims. Give notice to known creditors.
• Calendar the deadline to file the inventory of assets with the court. Court rules (22 NYCRR 207.20) generally require filing within six months after letters issue.

Months Three Through Seven

• Decide whether real estate will be sold or distributed in kind. Keep carrying costs paid.
• Review the investment portfolio under the Prudent Investor Act, discussed below.
• Determine whether a New York estate tax return is due. If it is, it is due nine months after death.
• Arrange the testator's final income tax returns and the estate's fiduciary income tax returns (federal Form 1041 and New York Form IT-205).
• Pursue any assets held by third parties, using a turnover proceeding if needed.
• Track the seven-month creditor date.

After Seven Months

• Pay or reserve for valid claims, taxes and expenses.
• Prepare an accounting. Either settle informally with receipts and releases from beneficiaries, or settle judicially in the Surrogate's Court.
• Make distributions, keep a reserve for final expenses, and close the estate.

What a New York Executor Is Empowered to Do: EPTL 11-1.1

Letters Testamentary give the executor the powers listed in EPTL 11-1.1, unless the will limits them. These powers include:

• investing and reinvesting estate property
• selling, leasing or mortgaging property, including real property in many cases, without a court order
• collecting, compromising and settling claims for and against the estate
• paying taxes, expenses and debts
• voting securities and dealing with brokerage accounts
• continuing or winding down business interests where the will or the court allows
• hiring and paying lawyers, accountants and appraisers from estate funds
• abandoning property that has no value or costs more to keep than it is worth

The will can expand these powers. A will can also direct that certain property be kept, or that a particular asset go to a named person. In that case, the executor's general power to sell gives way to the will's specific instruction.

Investing Estate Assets: The Prudent Investor Act

New York's Prudent Investor Act, EPTL 11-2.3, governs how an executor handles investments. The executor must consider the estate as a whole and diversify unless there is a good reason not to. The executor also has to weigh the estate's needs, taxes, the expected timing of distributions and the beneficiaries' interests. Holding a single concentrated stock position for a long time, or leaving large sums uninvested with no plan, can expose an executor to claims if the estate loses value.

Because most estates are settled within a year or two, the right approach often favors stability and liquidity over growth. The statute also requires the executor to review assets within a reasonable time after taking control. You should document your investment decisions in writing as you make them.

Creditors, the Seven-Month Window and When to Distribute

Under SCPA 1802, an executor who in good faith pays claims or distributes assets more than seven months after letters issue is protected against creditors who did not present claims within that time. Under EPTL 11-1.5, the executor is not required to pay legacies until seven months after letters issue. Taken together, these rules explain why careful executors usually wait at least seven months before making significant distributions. If you distribute earlier and a valid claim surfaces, you can be personally liable to the extent the estate can no longer pay.

If the estate cannot pay every claim in full, SCPA 1811 sets the order of payment:

• First: debts entitled to preference under federal or New York law, such as certain taxes.
• Second: reasonable funeral expenses.
• Third: administration expenses.
• Last: all other debts.

An executor who pays a junior creditor and leaves too little for a senior one can be personally liable for the shortfall. If someone else is holding estate property, such as a relative who withdrew money from the testator's account or kept jewelry, the executor can bring a discovery and turnover proceeding under SCPA 2103. See discovery and turnover proceedings and bank accounts with no beneficiary.

New York Estate Tax and the Cliff

New York has its own estate tax, separate from the federal tax. The New York basic exclusion amount is adjusted each year for inflation. For deaths in 2025 it is $7,160,000. Check the Department of Taxation and Finance for the figure that applies to the year of death.

New York's exclusion phases out quickly. If the New York taxable estate exceeds the exclusion by up to 5 percent, the benefit of the exclusion shrinks. If the taxable estate is more than 105 percent of the exclusion, the exclusion is lost entirely, and New York tax applies to the whole estate rather than only the excess. Practitioners call this the cliff. An estate just over that line can owe substantially more New York tax than an estate just under it.

Where a return is required, the executor files Form ET-706 within nine months of death unless an extension is granted. The federal exemption is much higher, so many estates that owe New York tax owe no federal estate tax. Executors of estates near the threshold should get tax advice early, because valuation choices and the treatment of charitable and marital gifts can determine which side of the cliff the estate falls on.

Executor Commissions Under SCPA 2307

New York executors are paid by statutory commission. SCPA 2307 applies these rates to the value of property the executor receives and pays out:

• 5% of the first $100,000
• 4% of the next $200,000
• 3% of the next $700,000
• 2.5% of the next $4,000,000
• 2% of everything above $5,000,000

Worked Example: A $1.2 Million Estate

Assume the executor receives and pays out $1,200,000 in commissionable property:

• 5% of $100,000 = $5,000
• 4% of $200,000 = $8,000
• 3% of $700,000 = $21,000
• 2.5% of the remaining $200,000 = $5,000
• Total commission: $39,000

That is an effective rate of about 3.25 percent. The figure is a starting point. The actual commission depends on what counts as commissionable property in the estate.

Real Property

Real property is treated differently. In general, real estate that passes to beneficiaries without being sold by the executor is not part of the commission base. If the executor sells the property, the proceeds become commissionable. If the executor manages rental property, separate rules may allow compensation tied to rents collected. Assets that pass outside probate, such as joint accounts and accounts with named beneficiaries, are not commissionable.

Co-Executors

When there is more than one executor, the number of full commissions depends on the size of the estate. Under SCPA 2307, if the gross estate is $300,000 or more, each executor is generally entitled to a full commission, up to three. If there are more than three executors, three commissions are shared among them. For smaller estates, fewer full commissions are allowed and they are divided. The will can change these rules, and testators sometimes limit co-executors to one shared commission. In the $1.2 million example above, two co-executors would generally each be entitled to $39,000, for a total of $78,000, unless the will says otherwise.

Taking or Waiving the Commission

Commissions are taxable income to the executor. An executor who is also a beneficiary sometimes waives the commission, because an inheritance is not subject to income tax. Whether waiving makes sense depends on the estate tax picture and on how the will divides the estate among beneficiaries. Waivers should be in writing.

Fiduciary Duty, Accountings and Self-Dealing

An executor is a fiduciary. New York holds fiduciaries to a high standard of loyalty and care. The executor must act in the estate's interest, keep estate funds separate, keep records and keep beneficiaries reasonably informed. Self-dealing is treated strictly. An executor who buys estate property, borrows from the estate or pays personal expenses with estate funds faces close scrutiny, even if the price seemed fair. The safer course is to avoid the transaction or get court approval in advance.

Beneficiaries can enforce these duties. Under SCPA 2205, an interested person can petition to compel the executor to account. The beneficiary can then file objections to the accounting. If the court finds misconduct or negligence, it can surcharge the executor, meaning the executor must personally repay the loss. Theft of estate funds can also lead to criminal charges. For more, see breach of fiduciary duty, breach of fiduciary duty attorney, breach of trust and estate accountings.

Removal and Suspension of an Executor

Beneficiaries cannot remove an executor on their own. In New York, only the Surrogate's Court can suspend, modify or revoke an executor's letters. An interested person, such as a beneficiary, creditor or co-executor, petitions under SCPA 711. In certain circumstances, the court can act on its own initiative under SCPA 719. Grounds include:

• wasting or improperly applying estate assets
• dishonesty, improvidence or other conduct showing unfitness
• failing to obey a court order or to file required papers
• becoming ineligible under SCPA 707, for example through a felony conviction
• removing estate property from New York without authority
• letters obtained through false statements to the court

Courts do not remove an executor simply because beneficiaries are unhappy with the pace of the estate or with decisions that fall within the executor's discretion. Removal is a serious step, and courts expect evidence. See removing an executor or administrator in New York.

Can an Executor Override the Will?

No. The executor's authority comes from the will and from the letters. The executor's job is to carry out the testator's plan, not to substitute a different one. Within that plan, the executor decides practical matters, such as when to sell, which assets to sell first and when to distribute. Beneficiaries sometimes mistake ordinary administration for misconduct. Some outcomes look like the executor departing from the will when the executor is actually following New York law:

• Ademption: A gift of a specific item fails if the testator no longer owned it at death. New York has limited exceptions, such as certain sales made by a guardian (EPTL 3-4.4) and certain traceable proceeds.
• Abatement: When there is not enough to pay debts, expenses and all gifts, EPTL 13-1.3 sets the order in which gifts are reduced. Unless the will says otherwise, property passing by intestacy is used first, then the residuary estate, then general (dollar-amount) gifts, then specific gifts. Gifts to a surviving spouse that qualify for the marital deduction are generally protected.

There are two lawful ways to depart from the will's literal terms. The first is written consent from every affected beneficiary, for example to sell an item and distribute cash instead. The second is a construction proceeding in the Surrogate's Court when the will is ambiguous. An executor who follows a court decree is generally protected from later complaints about that decision.

Can an Executor Remove a Beneficiary?

No. An executor has no power to cut out someone the will names. An executor who withholds a beneficiary's share without legal grounds can be compelled by the court to distribute it, surcharged for any loss and removed. A named beneficiary may still lawfully receive less, or nothing, for reasons that come from the law rather than from the executor's choice:

• Insufficient assets: the gift abates under EPTL 13-1.3.
• Lapse: the beneficiary died before the testator. The anti-lapse statute, EPTL 3-3.3, saves gifts to the testator's issue or siblings for their surviving issue. Otherwise the gift usually falls into the residuary estate.
• Ademption: the specific item left to the beneficiary no longer exists in the estate.
• Disqualification: a surviving spouse who abandoned or failed to support the testator can be disqualified under EPTL 5-1.2. New York case law also bars a person who intentionally and wrongfully killed the testator from inheriting.
• Disclaimer: the beneficiary refused the gift through a timely written disclaimer under EPTL 2-1.11, generally within nine months of death.
• Set-off: the beneficiary owed the estate money, and the debt is deducted from the share. If the debt is disputed, the court may have to decide it.
• Unmet condition: the will made the gift conditional, and the condition was not met.

Beneficiaries who want to know what the will says can learn more on our page about whether beneficiaries are entitled to a copy of the will.

Challenging the Will That Names the Executor

A distributee or earlier beneficiary who believes the will is invalid can file objections in the probate proceeding. The common grounds are lack of testamentary capacity, undue influence, fraud, duress, forgery and improper execution. Before objections are filed, an objectant can usually take pre-objection examinations of the attesting witnesses and the drafting attorney under SCPA 1404. Capacity challenges often turn on the testator's medical records from the period around the signing. Undue influence is usually proven through circumstantial evidence of a confidential relationship and an opportunity to exert control. If the will falls, the nominated executor's appointment falls with it. See will contest attorney and inheritance disputes in NYC. For appeals from Surrogate's Court decisions, see appealing a Surrogate's Court judgment.

Common Executor Problems Involving Real Estate

Real estate causes many of the disputes we see. One beneficiary may live in the house and pay nothing. Siblings may disagree about selling. A co-owner may want to buy out the others. The executor's options depend on how the property is titled and what the will directs. See a beneficiary living in the inherited house, a sibling living rent-free in an inherited house and buyouts of an inherited residence.

Related New York Executor and Probate Pages

• Getting Letters Testamentary in New York
• Sample NYC probate timeline
• Affidavit of heirship
• Felons serving as executor or administrator
• Estate accountings
• Executor breach of fiduciary duty
• Removing a fiduciary
• Resolving executor and beneficiary conflicts
• Estate administration in New York

Speak With a New York Estate Attorney

If you have been named as executor, or you are a beneficiary with concerns about how an estate is being handled, we can help. We represent executors, administrators and beneficiaries in Surrogate's Courts in New York City and on Long Island. Call the Law Offices of Albert Goodwin at (212) 233-1233 to discuss your situation.