Estate planning in New York is a very involved process. When an individual passes away, their estate would have to pass through a court process before the beneficiaries can have access to their inheritance. Overseeing the inventory, verification, and division of the individual’s estate is not an easy undertaking.. Managing the estate through probate or administration is a very important role fulfilled by either an executor or an administrator.

Being the executor or administrator of an estate is not a role to be taken lightly. Nonperformance of your duties can result in penalties. You may also be required to deal with will contests and creditors who make claims against the estate. A skilled estate planning lawyer can help you understand and assist you in performing your duties. Our experienced New York estate planning attorneys at New York Legacy Lawyers are experienced in assisting executors and administrators through the often complicated probate process. To learn more about how we can help, contact our office today at (718) 713-8080 or fill out our online form.

What Is an Executor vs. an Administrator?

In New York, when someone passes away (sometimes called a decedent) and leaves behind an estate, the matter of managing their assets and liabilities, paying off creditors, and distributing what’s left to the beneficiaries is not handled by the court directly. Instead, it is up to an executor or an administrator to oversee this process.

An Executor is a person or entity that a decedent names in their last will and testament. It may be an individual, a trust company, or a bank.. Multiple executors can be appointed simultaneously and work together to administer the estate.

When a person dies without a will (dying intestate) or if the person’s will did not declare an executor, the court will appoint an administrator to take over the role of managing the process of estate. New York law lists the order in which different relatives have priority to serve as administrator of an estate.

Executors and administrators are responsible for gathering and creating an inventory of the property a decedent left behind, paying off any taxes or other bills due, receiving and validating any claims from creditors, and distributing any remaining assets to the beneficiaries.

What is the process of appointing an executor or administrator?

In order to be appointed, the nominated executor or the proposed administrator often hires an attorney to guide and advise them. First, a petition must be prepared that lays out the information about the decedent. This petition must list anyone who would be affected by the proceeding, such as the heirs or distributees of the decedent. These groups can include people who are going to inherit under the will, people who would have inherited if not for the will, and people who would have inherited under an older version of the will. There are also additional documents and affidavits that must be prepared and filed with the Surrogate’s Court.

Certain classes of people must either sign a Waiver and Consent if they do not object to the appointment of the nominated executor or proposed administrator. After notice has been issued to those entitled to inherit, the Surrogate’s Court will hear any complaints or contests to the appointment of the potential administrator or executor. If there are no objections, the heirs or distributees would have to submit a waiver indicating their consent to the appointment of the executor or administrator.

Executors are issued Letters Testamentary to indicate their authority while administrators receive Letters of Administration. The court can also issue official documents to the executor or administrator of an estate to help them in mustering the assets of the decedent.

Estate executors and administrators are entitled to be compensated for their work, the amount of which depends on the size of the estate. This is called a commission and is calculated based on a formula. However, some executors choose to forgo commissions, especially if they are a close friend or family member of the decedent. Banks or trust companies may actively seek compensation and may reject the role of executor if the size of the estate does not meet their requirements.

An executor needs to follow the wishes of the decedent as written in the will and the administrator must manage the estate according to New York’s intestacy laws. Both executors and administrators have a fiduciary duty to perform their roles properly. They are legally required to put the best interests of the estate over their own or risk having a complaint filed against them in the Surrogate’s Court.

It’s important to remember that while executors and administrators can perform the same function, there are some key differences between the two.

Who is Eligible to be Appointed?

As mentioned, an executor is a person nominated under a will to oversee the management and distribution of the estate. Not just anyone can be appointed as an executor. New York law mandates the following requirements before a person can be accepted by the Surrogate’s Court as the executor of an estate: