Surrogate’s Court Procedure Act § 1417: Renunciation by Nominated Executor; Retraction Thereof

The executor is the person responsible for winding up the affairs of a decedent who left a will. Generally, the decedent names in his or her will the person that he or she wants to serve as the executor. The Surrogate’s Court will then formally appointed the named executor, unless the person is not eligible to serve. However, there are occasions in which the executor decides that he (or she) does not wish to continue serving or no longer can serve. The executor has the right to renunciate his authority. For the renunciation to be effective, it must be completed in the manner prescribed by New York law. To learn more about the rules related to the renunciation by an executor, including the requirements of Surrogate’s Court Procedure Act § 1417, Renunciation by nominated executor;  retraction thereof, contact an experienced probate lawyer serving New York at the Law Offices of Stephen Bilkis & Associates.

1. Requisites of letters: Surrogate’s Court Procedure Act, § 701
2. Revocation of letters upon proof of will: Surrogate’s Court Procedure Act, § 1413
3. Process;  renunciation or exclusion of persons having prior or equal right: Surrogate’s Court Procedure Act, § 1419

When a testator writes a will, he or she will name someone to serve as executor. In doing so, the testator would have nominated the executor. In order to be officially appointed to serve as executor, the nominated executor must file a petition with the Surrogate’s Court requesting to be appointed. If the Surrogate’s Court approves the petition, it will issue the executor a document called Letters Testamentary. With Letters Testamentary, the executor has proof that he or she has the legal authority to act on behalf of the estate.

Anyone who is at least 18 years old can serve as an executor, except incompetents, nondomiciliary aliens, felons, someone who has a history of substance abuse, dishonesty, carelessness, want of understanding, or who is otherwise unfit to serve as executor. If the testator nominates someone who is ineligible to serve, the Surrogate’s Court will not issue that person Letters.

New York Estates, Powers, and Trusts Law outlines the duties and responsibilities of the executor. In addition, the testator can give the executor additional powers or can limit the executor’s powers. Generally, the responsibilities of an executor include:

• Inventorying estate assets. The executor is responsible for gathering, inventorying, and preserving estate assets. Assets may include personal property, real estate, and financial property. Preserving the estate may mean securing the property, making proper investments, continuing to pay insurance, and making sure that the property is appropriately maintained.
• Pay bills. With Letters Testamentary, the executor would be able to close the decedent’s accounts and pay bills. The executor must also resolve claims against the estate and pay valid ones.
• Distribute assets. The executor is responsible for distributing assets according to the terms of the will.

If the decedent passed away without a will, his or her estate must still go through an administration process. Instead of appointing an executor, the Surrogate’s Court would appoint an estate administrator. An estate administrator has similar responsibilities and authority as an executor.

To learn more about the details of administering an estate and the responsibilities of an executor, contact an experienced probate attorney in New York.

Under New York law, the rules related to renunciating letters testamentary are as follows:

• Acknowledged instrument. The executor may relinquish his or her right to letters by an acknowledged instrument. An acknowledged instrument is a written document that has been authenticated, proving that the person who signed it was the person who authorized the document. The document must be filed with the Surrogate’s Court that has jurisdiction of the matter.
• Retracting renunciation. After renunciating letters, the executor has the right to retract the renunciation, and Surrogate’s Court may issue letters to the person who retracted the renunciation. The retraction must be executed in a manner similar to the execution of the renunciation. In other words, there must be an acknowledged instrument. However, the retraction must be executed prior to the issuance of letters to another person.

To ensure that your renunciation document or document retracting a renunciation is properly completed, acknowledged, and filed, contact an experienced New York probate attorney.

1. A person named as executor in a will may renounce his right to letters testamentary by an acknowledged instrument.
2. A renunciation may be retracted by an instrument executed in like manner as required for the execution of a renunciation at any time before letters testamentary or letters of administration with will annexed have been issued to any other person in his place or after they have been so issued, if such letters have been revoked or the person to whom they were issued has died or become an incompetent and there is no other acting executor or administrator.
3. Where a retraction is so made letters testamentary may be issued to the person making it upon such notice as directed by the court.
4. An instrument specified in this section must be filed in the court having jurisdiction over the estate.

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 a matter related to the requirements of New York SPCA section 1417, Renunciation by nominated executor;  retraction thereof, 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: Brooklyn, Long Island, Nassau County, Bronx, Manhattan, Queens, Staten Island, Suffolk County, and Westchester County.