Estate, Powers and Trusts, § 11-1.4: Validity of Execution of Power to Sell, Mortgage or Lease Real Property

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. The executor is in charge of the estate administration and works closely with the Surrogate’s Court judge throughout the process. While in most cases one person is named the executor, it is not uncommon for a testator to name more than one person to service as co-executors. One of the most important responsibilities of an executor is to distribute the estate's assets according to the terms of the will. However, prior to distributing the assets there are a number of tasks that an executor must complete. For example, the executor may find it prudent to sell one or more of the estate’s assets. In the case where there are co-executors, under New York probate law § 11-1.4, a single executor has the power to effective a sale, lease or mortgage related to real property that is part of the estate. Because the executor of your estate will have significant power over how your assets are managed once you pass away, it is important that you name a person or persons who you are responsible and trustworthy. As you contemplate drafting your will and making the important decision concerning who will be your executor, it is critical to consult an experienced New York Probate 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, and that is compliant with New York estate law.

1. Fiduciaries’ responsibilities: Estates, Powers and Trusts, § 11-1.1
2. Tax elections by personal representatives: Estates, Powers and Trusts, § 11-1.2
3. Power and duty of executor before probate: Estates, Powers and Trusts, § 11-1.3
4. Payment of testamentary dispositions or distributive shares: Estates, Powers and Trusts, § 11-1.5
5. Property held as a fiduciary to be kept separate: Estates, Powers and Trusts, § 11-1.6

In your will you will name the person (or persons) 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. If you choose to name more than one person as your co-executors, it is also a good idea to name people who will be able to work together well.

Under New York Estate, Powers and Trusts, § 11-1.1, an executor has the power to sell, lease or mortgage real property of an estate. For example, if the executor feels that it is prudent to sell a piece of land because its value has significantly increased, then that executor has the right to sell it. Under New York Estate, Powers and Trusts, § 11-1.4, if there is more than one executor, it is not necessary that all executors agree to sign the sale, lease or mortgage documents. A single executor has the power to execute such documents alone.

Any deed, mortgage or lease duly executed by one or more, but not all, of the executors or trustees who qualified conveys the full title and interest of the testator, and is as effective as if all the executors or trustees who qualified had joined in the execution thereof, when ten years have elapsed since the recording of such deed, mortgage or lease in the county where the property affected is situated;  saving, however, the rights of every grantee, mortgagee or lessee, in good faith and for a valuable consideration, deriving title under an instrument executed by all the executors or trustees who qualified to the same property or any part thereof, whose deed, mortgage or lease is duly recorded before such period of ten years has elapsed.

Making a will and appointing an executor is an important process that will affect how your estate is managed once you pass away. If you decide to appoint more than one person to serve as co-executors, it is important that you understand how this will affect the management of your estate. 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.