Estate, Powers and Trusts, § 11-1.3: Power and Duty of Executor Before Probate

A will is an essential estate planning document that everyone should have. It is a set of instructions, usually in writing, that controls how your property will be managed and distributed upon your death. When you write your will you as the testator will name an executor who will be charged with carrying out your wishes as stated in your will during the process of estate administration. Generally, an executor’s duties begin when a judge officially admits a will to probate and letters testamentary are issued. This means that an executor has very few powers prior to probate. New York Estate, Powers and Trusts, § 11-1.3, specifically states which power an executor has prior to the time when he or she is formally appointed executor by a probate court judge. That power is limited to paying the decedent’s funeral expenses and taking necessary steps to preserve the estate. As you contemplate drafting your will and appointing an executor it is would be wise to consult an experienced New York Estate Lawyer who will educate you on the duties and responsibilities of an executor and who will make sure that your will is drafted in a manner that reflects your estate planning goals.

1. Tax elections by personal representatives: Estates, Powers and Trusts, § 11-1.2
2. Validity of execution of power to sell, mortgage or lease real property by less than all qualifying executors: Estates, Powers and Trusts, § 11-1.4
3. Payment of testamentary dispositions or distributive shares: Estates, Powers and Trusts, § 11-1.5
4. Property held as a fiduciary to be kept separate: Estates, Powers and Trusts, § 11-1.6

In your will you will name the person who will be the executor of your estate. This person must be someone who is responsible and trustworthy as he or she will be given a significant amount of responsibility.

Under EPTL 11-1.3, an executor has very little power prior to probate. Prior to probate an executor is permitted to:

1. Use assets from the estate to pay funeral expenses.
2. Take actions necessary to preserve the estate.

Once a will has been admitted to probate and letters testamentary have been issued formally appointing the executor, the executor has substantial power to manage the estate and distribute its property according to the terms of the will. Responsibilities of your executor may include:

1. Gathering and inventorying your property. This may include the contents of your home, other real estate, financial accounts, and other types of property.
2. Managing your property until it is distributed to your beneficiaries. This may include taking care of your the bills related to your house such as paying the mortgage and utilities, as well as managing your investments.
3. Hiring professions such as an attorney or accountant. This may be required if your estate is substantial or complicated.
4. Paying estate debts and taxes. This would include filing your final tax return and paying any taxed owed as well as paying your outstanding creditors.
5. Distributing your assets to your beneficiaries. This is the final step. It can only be done after all other business of your estate has been taken care of such as paying your creditors.

An executor named in a will has no power to dispose of any part of the estate of the testator before letters testamentary or preliminary letters testamentary are granted, except to pay reasonable funeral expenses, nor to interfere with such estate in any manner other than to take such action as is necessary to preserve it.

Making a will and appointing an executor is an important process that will affect how your estate is managed once you pass away. It will also impact the financial future of your family members. It is important to make sure that it is done correctly. The staff at Stephen Bilkis and Associates has years of experience working closely with New York clients to draft wills and other estate planning documents such as trusts, powers of attorney and living wills. To learn more about estate planning, contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.