So, you’ve been named as the executor of a loved one’s estate and agreed to help? Before you take on that role, you need to understand how the process works. The executor position is filled with responsibilities that not everyone is willing or able to fulfill. Since you’re committed to serving in that capacity, you could almost certainly benefit from a crash course in the estate settlement procedures you’ll be following as you do the job. To assist you in that educational process, let our probate lawyer explain some of the things you need to know about the probate process.
What is the purpose of the probate process?
For most other estates, however, the probate process is required to prove the will’s validity, recognize the decedent’s chosen representative, and provide a valid, legal process for gathering the deceased’s assets, identifying and paying creditors, and delivering bequests to heirs. Through the probate process, the decedent’s affairs are wrapped up and the estate is distributed to its new owners.
However, probate isn’t always required. In some cases, estates can be settled without probate – particularly when the total value of any assets is less than $30,000. In those cases, settling the estate can be a simpler and far less time-consuming process. That simpler process can also sometimes apply when the only real assets are real estate.
What is an executor?
The executor is the person named by the deceased in his or her will. That person serves as the estate’s personal representative and is responsible for ensuring that all aspects of the decedent’s affairs are properly settled in accordance with the law. The executor is charged with overseeing the property, protecting and even enhancing its value, and ultimately seeing that it goes to its rightful owners. Executors are officially appointed by New York’s Surrogate’s Courts. Note that executors can be either a person that the decedent chose or even a trusted entity like a bank.
Executors have some restrictions
Executors cannot just act on a whim or with reckless abandon either. They have a fiduciary duty that extends to the beneficiaries, any creditors involved, and the estate itself. That duty requires them to act in the estate and beneficiary’s best interests always, even to the point of putting their interests ahead of his own.
What are the duties of an executor?
Once the court officially recognizes and appoints the executor, he or she is responsible for virtually everything that needs to be done to settle the estate. That involves a long list of specific duties. Even before being appointed by the court, the executor is tasked with providing the Surrogate’s Court with the will, death certificate, and petitions to be named as executor. Until he receives authority from the court, the named executor has no power to act on the estate’s behalf. Once authority is given, the executor must identify the decedent’s assets, locate them, and take possession and control of them. All of that is done so that those assets can be properly protected against potential loss that could put the executor in legal jeopardy.
Inventory and appraisal of assets
As those assets are gathered, they need to be appraised. This can sometimes be a simple matter, but complex estates with valuable assets may need a professional appraisal. Some assets may need to be liquidated to pay bills or taxes. If that’s the case, or if the decedent left behind actual money, then the executor needs to open a checking account for the estate. Beneficiaries and potential creditors should be notified. For the latter group, this notification provides an opportunity for any claims to be made against the estate. Those claims will need to be paid, using assets from the estate.
Taxes must be calculated and paid if any are due. That requires that the decedent’s final federal and state tax returns be completed. If estate taxes are due, those need to be paid as well. With debts and taxes paid, the executor can move on to the distribution of assets. While this should be ordered by the court, the executor has a role to play in getting assets to their new owners – including assisting with the transfer of titles necessary for some properties. Throughout the process, the executor should keep a current accounting of all activities. This will need to be sent to the court, along with a formal request to close the estate. If everything has been completed to the court’s satisfaction, a judge will declare the estate closed.
If you have questions regarding wills, probate or any other estate planning matters, please contact the experienced attorneys at the Law Offices of Mary A. Miller, P.C. for a consultation. You can contact us either online or by calling us at (914) 939-6565. We are here to help!