There is a great deal of misunderstanding about the process involving the probate of a Last Will and Testament. If you have been named as the Executor in someone’s Will, you may not know what your responsibilities are and how to start.
What follows are some basic questions and answers related to the probate of a Will. This Q&A will help you better understand the probate process from the perspective of a potential Executor.
If I am named Executor in someone’s Will, can I act right away?
No. If someone dies and they named you as the Executor in their Will, you are not authorized to act as Executor just because you were named. You need to petition the Surrogates Court in the county where the decedent lived and ask to be appointed as the Executor by the Surrogates Court Judge.
Do I need a lawyer to petition the court?
You are not required to have a lawyer, however, if you are unfamiliar with the probate process, you may find it very difficult to handle the matter without legal representation.
Is that true in all cases?
The one exception may be in the case of a small estate, i.e. an estate where the decedent owned no real estate and their personal property was valued at less than $30,000.00. There is a small estate process that is easier to pursue, but you may still choose to have the benefit of experienced counsel.
Do I have to qualify in some way to be an Executor?
Generally speaking, to act as an Executor, you need to be a competent adult who has not been convicted of a felony. There are additional subjective characteristics that are sometimes considered by the court, if an objection is brought against your appointment. Those characteristics may include whether you are a substance abuser or dishonest in financial matters.
What happens if the Surrogates Court appoints me as Executor?
If you are appointed, the court issues you Letters Testamentary in the estate of the decedent. This authority allows you to collect the assets of the decedent, pay the estate’s expenses and debts, and distribute the remaining assets to the beneficiaries.
Is there a priority as to which debts and claims get paid first?
Yes, and it is very important you pay attention to that priority. Generally speaking, estate administration expenses are paid first. After that, the federal and state governments have priority, then judgment creditors, and then general creditors. Paying debts or claims out of order may subject the Executor to being held personally responsible for the improperly paid amount.
Does the estate need to remain open for a long time?
You need to keep the estate open for seven months after you are issued Letters Testamentary. During this time, creditors and claimants can file claims against the estate.
Can I pay out money to beneficiaries during this time period?
It is generally recommended that you not do so, in order to ensure that sufficient funds are available to pay all debts and claims of the estate.
How does the estate wrap up?
Before you seek to wrap up the estate, you need to file an Inventory with the court. The Inventory details the general values of the probate assets and what types of non-probate assets were owned by the decedent. After that is filed, you can formally or informally close the estate.
How do you informally close an estate?
You informally close an estate by having all beneficiaries sign a receipt and release form confirming they’ve received what they were due under the Will and releasing you from any further liability to them as Executor. Receipts and releases need to be filed with the court for all beneficiaries. In addition, the court may require an additional statement from you as Executor regarding the closure of the estate.
How do I formally close an estate?
Estates are formally closed by filing an account for all estate activity and a petition seeking the approval of the account by the court. This proceeding is on notice to all beneficiaries and other interested parties, i.e. creditors. This process may be used in cases where there are disputes regarding the estate or where one or more beneficiaries are under a disability.
Are there tax issues involved?
It is highly recommended you seek the advice of an accountant when acting as Executor. The accountant can assist with any final income tax returns for the decedent, as well as any income tax returns for the estate. If the estate is large enough, there may also be a need to file estate tax returns with the state and federal governments.
It is important to understand that if someone names you as Executor in their Will, you do not have the power to act as Executor simply because the person died. There is a formal legal process that governs your appointment by a court and the court’s supervision of your handling of the estate administration. Failing to understand and abide by your obligations as an Executor could have serious implications for you and the other parties interested in the estate.
In order to ensure you handle your responsibilities properly, it is advisable to seek the assistance of experienced professionals, including attorneys and accountants. With the right guidance, the process can be successfully navigated to the benefit of all parties concerned.
Matthew J. Dorsey, Esq. is a Partner with O’Connell and Aronowitz, 1 Court St., Saratoga Springs. Over his twenty-one years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at 518-584-5205, This email address is being protected from spambots. You need JavaScript enabled to view it. and www.oalaw.com.
