Surrogate’s Court Procedure Act § 1416: Executor Failing to Qualify or Renounce;  How Excluded

An executor is the person named by a testator in his (or her) will), who is responsible for administering the testator’s estate once he passes away. While a testator can name anyone he chooses to serve as executor, person named must be approved by the New York Surrogate’s Court before he (or she) will be given the legal authority to move forward with the duties related to administering the decedent’s estate. It is up to the named executor to take the appropriate steps complete the process of being appointed by the Surrogate’s Court. Failure to do so would result in the executor not being appointed, and the court appointing another person to perform the administration duties. If you are an executor named in the will of a loved one and have questions about the steps in you need to take to be formally appointed by the Surrogate’s Court, including the requirements of Surrogate’s Court Procedure Act § 1416, Executor failing to qualify or renounce;  how excluded, contact the Law Offices of Stephen Bilkis & Associates. Our experienced New York probate attorneys have the experience, skill, and resources to help you through the process.

1. Revocation of letters upon proof of a will: Surrogate’s Court Procedure Act, § 1413
2. Renunciation by nominated executor;  retraction thereof: Surrogate’s Court Procedure Act, § 1417
3. Process;  renunciation or exclusion of persons having prior or equal right: Surrogate’s Court Procedure Act, § 1419

The executor is a critical part of probate and the estate administration process. The job of the executor is to manage the decedent’s estate through the administration process and ultimately distribute estate assets based on the terms of the will. While every estate is different, some of the common duties of an executor include:

Caring for estate assets. One of the first jobs of the executor is to locate estate assets, appraise them, and manage them. Estate asset would include everything that the decedent owned or had an ownership interest in. This may include personal property, real estate, financial property, and intellectual property. The executor must determine the value of each asset as of the date of the testator’s death. While it may be easy to determine the value of some assets, such as the value of the decedent’s checking account, it may be more difficult to determine the value of other assets. It may be necessary to call upon a professional in order to get an accurate appraisal. An experienced probate attorney serving New York will be able to explain the procedure for getting estate assets appraised.

The executor must also secure and manage estate assets. This means that the executor must take steps to ensure that the assets are safe and are not wasted. For example, if a car is part of the estate, the executor should make sure that it is locked and stored in a safe place.

Pay estate debts. Creditors of the decedent must be given notice. Creditors have 7 months from the date that the Surrogate’s Court issues letters testamentary to file claims against the estate in order for the executor not be held personally liable for failure to pay the claims. The executor must pay valid claims out of estate assets. Any claims that are filed after the 7 month claim period has expired are less likely to get paid because the executor may have already distributed assets.

Pay taxes. The executor is also responsible for paying state and federal that the decedent or the estate owed.

Distribution of assets. The testator’s will directs how his or her assets are to be distributed. It is up to the executor to see to it that the testator’s wishes are fulfilled and the assets in the estate are distributed to the beneficiaries mentioned in the will.

As an experienced probate attorney in New York will explain, the law requires that if a fiduciary, an interested party, or a creditor makes a request, the Surrogate Court direct an executor named in a will to qualify within a specified time. If he or she fails to the court may issue an order indicating that the named executor renounced the appointment. However, the court may later revoke the order an issue Letters Testamentary.

1. Upon the application of a fiduciary, a person interested or a creditor, the court shall direct an executor named in a will to qualify within a time specified by the court or in default of so doing to be deemed to have renounced the appointment in any case where
   1. a person named as executor in a will does not qualify or renounce within 15 days after probate thereof or
   2. a person chosen by virtue of a power in a will does not qualify or renounce within 15 days after the filing of the instrument designating him or
   3. objections are filed to the grant of letters to a person named as executor in a will or chosen by virtue of a power therein contained and such person does not qualify or renounce within 5 days after the objections have been determined in his favor or, in a case specified in 710, within 5 days after an objection to letters has been established.
2. Where it appears by affidavit or other written proof to the satisfaction of the court that such an order cannot with due diligence be served personally within the state upon the person therein named the court may prescribe the manner in which it must be served.
3. If the person so designated executor does not qualify within the time fixed or within such further time as the court may allow for that purpose an order shall be made declaring that he has renounced his appointment as executor.  Such an order may be revoked by the court and letters testamentary issued to the person so failing to renounce or qualify upon his application in a case where he might have retracted an express renunciation as prescribed in the succeeding section.

For over two decades the New York probate attorneys at the Law Offices of Stephen Bilkis & Associates have successfully represented clients in matters related to probate, estate administration, and estate litigation before the New York Surrogate’s Court. If you are an interested party such as an executor, beneficiary, heir, or fiduciary in an matter related to the requirements of New York SPCA section 1416, Executor failing to qualify or renounce;  how excluded, or any other will, estate, or trust matter, contact one of our attorneys at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Long Island Nassau County, Bronx, Brooklyn, Manhattan, Queens, Staten Island, Suffolk County, and Westchester County.