Every Last Will and Testament must name a fiduciary to handle the estate after the Testator (male) or Testatrix’s (female) death. That fiduciary responsible for administering the Estate is commonly referred to as the Executor or Executrix. In most cases, the Testator informs the fiduciary about being named Executor. Rarely, however, does the Testator explain what the fiduciary’s responsibilities are or what actions need be taken when the Testator dies.
This article is the first in a series providing information about the rights and responsibilities of a fiduciary from the death of the Testator through close of the Estate, and beyond. This information is general and cannot substitute for legal advice from a licensed attorney.
It’s a common misconception that once a person dies, the individual named Executor in the Will is immediately authorized to act. He or she is not. In reality, prior to being officially appointed Executor by the Court, the named Executor's power is very limited. He or she may act to protect and preserve assets of the Estate, but may not take money out of the decedent’s bank account, sell the decedent’s stock, redeem the decedent’s bonds, or sell the decedent’s home, car, and/or other property. The Executor may take possession of the decedent’s property, but only for “safe keeping” to preserve it for the Estate.
Although the passing of a loved one is difficult and often requires time to grieve, it is incumbent upon the named Executor to promptly seek official appointment as Executor. Certain obligations of the decedent, if not addressed, may burden the Estate. For example, property taxes are still owed on the decedent’s home and utility costs keep accruing. Prompt appointment as Executor is warranted so that these matters can be resolved.
The Executor is appointed by the Surrogate’s Court in the county where the decedent resided at time of death. To be appointed, the named Executor must file a petition with the Court seeking Letters Testamentary, the document granting the Executor authority to act on behalf of the Estate.
Where a decedent dies without a Will, a petition seeking Letters of Administration is required. If the Executor needs to act immediately to protect the Estate (e.g., where the decedent's stocks are rapidly declining in value and should be sold quickly to prevent further losses), petitions for Preliminary Letters Testamentary or Letters of Temporary Administration may also be filed.
The Preliminary Letters are often granted quickly by the Court. This allows the Executor to immediately act, and grants the power to take most actions except distributing assets to beneficiaries.
The required Petition and other necessary forms can be prepared by your attorney.
Information required to do so may include the decedent's date of death, place of residence, any known creditors (including the funeral home, if the bill has not been paid) and the names and addresses of the decedent’s next of kin, also referred to as distributees, are identified in the Estate's Powers and Trusts Law § 4-1.1. The most common distributees are a decedent’s spouse and children. The distributees have a right to object to the Probate of the Will. The Court will require them to be served with process so they have an opportunity to do so unless they sign a Waiver consenting to the probate.
The Petition, signed by the named Executor, and other required forms (e.g., the death certificate, the decedent's original Will, and Proofs of Will) are submitted to the Surrogate's Court along with payment of a filing fee. That fee varies in accordance with the value of the Estate assets. Assuming that the Court finds the documentation satisfactory, it will issue Letters Testamentary to the Executor along with a Certificate of Appointment.
The Executor may now act on behalf of the Estate. He or she may apply for an Estate Identification Number (EIN) with the IRS and open an Estate bank account. The Executor may make deposits, write and cash checks, sell stock and handle the Estate’s affairs. However, the Executor must be responsible in handling the Estate and comply with the directions outlined in the decedent's Will. Failure to do so may allow the Estate beneficiaries to bring legal action against the Executor.
Further articles in this series will explore the powers of the Executor, continuing duties and some of the many troublesome areas an Executor will face in handling an Estate, including estate and income taxes.
If you or someone you know has been named Executor in the Will of a decedent and needs legal representation or has any questions, feel free to contact Magavern Magavern Grimm LLP attorneys Edward J. Markarian, Laurence H. Woodward or Thomas J. Lang at (716) 856-3500.