An executor is the person named in a will by a testator to be responsible for managing the testator's estate after he or she passes away. While one of the most important responsibilities of an executor is to distribute the estate's assets according to the terms of the will, there are a number of additional responsibilities that an executor must complete before distributing an estate's assets. While the executor must use the will to guide how he (or she) carries out his duties, New York law defines the duties and responsibilities of an executor as a fiduciary to the decedent’s estate. If you are named as an executor of a loved one's estate it is important to contact an experienced New York executor duties and responsibilities lawyer at the Law Offices of Stephen Bilkis & Associates. With over 2 decades of experiences representing clients I complex cases before the New York Surrogate’s Court, we can help with the challenge of administering an estate.
Selecting an executorWhen creating a will, the focus is often on the bequests. Selecting an executor should be given a great deal of consideration as well as the duties of executor are considerable. Typically testators select a close relative to serve as executor such as a spouse, child, parent, or sibling. Whoever a testator selects, the person should have the time, temperament to handle the responsibilities of the job.
A testator has a great deal of flexibility in naming his or her executor. He can name a single executor or co-executors. He can name an individual or a company. If you choose to name co-executors, it is important to make sure you select individuals who can work together. It is a good idea to name at least one alternate or successor executor as there is always the possibility that the primary executor will be unable or unwilling to act. If you do not name an alternator or successor, if your primary executor is no able to act than the result might be that multiple family members or other interested parties may petition the court to take over the duties of the executor. This may result in delays and hard feelings.
As a New York executor duties and responsibilities lawyer will explain, just because a testator names someone in his (or her) will to serve as executor does not mean that the Surrogate’s Court will issue that person letters. If there is evidence that the nominated person is not qualified he will not be issued letters.
In the 2018 case of Estate of Pepe, the Surrogate Court in the Bronx refused to appoint the executor that the decedent named in his will, how happened to be the decedent’s brother. In declining to issue letters, the court noted that a number of factors pointed to the nominated executor not being qualified. First, he delayed probating the decedent’s will without good cause; second the nominated executor lived in estate property for free; and third, the nominated executor used income that should have been added to the estate for his personal use. Concluding that the nominated executor was improvident regarding managing estate property, the Surrogate Court declined to issue him letters testamentary due to lack of qualification.
Executor duties and responsibilitiesThe executor has overall responsibility for virtually every activity necessary to settle the decedent’s estate. Depending on the complexity of the estate, the types of assets involved, and the background of the executor, the executor may need to pay reasonable fees to others to perform certain tasks. However, the ultimate responsibility lies with the executor. The entire administration process is overseen by the Surrogate’s Court. For some acts the executor may need to first get approval from the Surrogate’s Court. Under Surrogate's Court Procedure Act § 711, failure to follow an order of the court is grounds for the executor’s letters being suspended or revoked.
Take control of assets. In order for the executor to settle a decedent’s estate, he (or she) must have control of the estate. Upon receiving letters, one of the first tasks of the executor is to take control of estate estates and put together an inventory of them. This would involve getting the keys to houses and vehicles, retrieving property from family and friends who may have borrowed the decedent’s property, and going to financial institutions to gain access to the decedent’s accounts. The executor will have to show his letters testamentary to prove to financial institutions and other individuals and businesses that he has the legal right to take control of the decedent’s property.
Part of taking control of estate assets and inventorying them is determining their value as of the time of the decedent’s death. Depending on the type of assets, the executor may need to hire an appraiser. A correct date of death appraisal is important as it will determine the fee that executor would be due. As an experienced New York executor duties and responsibilities lawyer will explain, the executor will also need to know the value of the estate in order to understand the assets available to pay estate debt and make distributions to beneficiaries.
Managing the estate. Managing the estate involves caring for the day-to-day activities of making sure estate assets are safe and not wasted. Until assets are sold or distributed, the executor must continue to pay bills such as utility bills, continue to maintain insurance, make sure property is secure, and tend to general upkeep of the property. If the estate has investments, the executor must make sure that the investments are prudent to ensure that the value of the estate does not decline. It may be necessary to enlist the services of an investment advisor. Failure of the executor to properly manage the estate may result in personal liability on his (or her) part for any losses suffered by the estate or beneficiaries for breach of fiduciary duties.
Pay estate debts. The next major responsibility for the executor is to pay estate debts. While beneficiaries of a decedent may be focused on asset distribution and may believe that asset distribution is really what the administration is all about, debt payment is a critical part of the administration process. In fact, some might argue that debt payment is even more important than asset distribution.
Estate debts include debts that the decedent owed at the time of his death such as credit card bills, personal loans, outstanding taxes, and other debt owed to the government. The executor is also responsible for paying expenses related to the funeral and interment of the decedent as well as the expenses related to the administration of the estate. Such expenses are paid out of estate funds.
The executor is required to pay all valid and timely filed claims against the estate as well as expenses of estate administration. Creditors are given notice of the probate proceeding and must file their claims during the claims period. Failure to do so may result in the creditor not getting paid. Even for creditors who filed their claims timely, the executor can only pay estate debt to the extent that there are assets in the estate to do so. If there are insufficient assets, the executor must pay debts based on a statutory order of priority.
Distributing estate assets. After paying debts and expenses, the executor can distribute the estate's assets to the beneficiaries named in the will. Prior to the final distribution of assets, small allowances can be given to the testator's spouse, minor children and others who relied on the testator for support. In general, however, no assets are distributed until debts are paid and all other estate issues are resolved.
Regardless of what the will states, the executor can only distribute estate assets to the extent that assets remain in the estate after bills and expenses are paid. If you are facing a situation where there are insufficient assets, contact an experienced executor duties and responsibilities attorney in New York who can explain how to handle the situation, including how to apply the process of abatement. Abatement of legacies occurs when the will contains bequests that exceed the value of the estate assets available to satisfy such bequests. The rules are designed to ensure that specific bequests are funded before general distributions. For example, residuary property and general cash gifts will abate before specific gifts.
Contact the Law Offices of Stephen Bilkis & AssociatesThe duties and responsibilities of an executor are often quite routine. However, they can also become quite complicated depending on the size of the estate and any unexpected events that develop in the process such as estate litigation. An experienced executor duties and responsibilities attorney serving New York will be able to help you complete the process of winding up the testator's affairs and distributing estate assets as quickly as possible under the circumstances. The attorneys at the Law Offices of Stephen Bilkis & Associates have decades of experience successfully representing clients in a variety of complex probate and administration matters. We are here to help. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Manhattan, Bronx, Westchester County, Long Island, Brooklyn, Nassau County, Queens, Staten Island, and Suffolk County.