WHAT IS AN EXECUTOR?
is an Executor?
Does an Executor Do?
Should Be Named Executor?
Executors Get Paid?
is the Surrogate's Court?
is a Will Probated?
Does the Executor Find the Estate's Assets?
Does the Executor Determine a Decedent's Liabilities?
Should an Executor Invest the Estate?
Taxes Must Be Paid?
Does the Estate Get Distributed?
Spouse as Sole Executor and Sole Beneficiary.
What is an Executor?
The Executor is the man, woman (a woman is sometimes referred to as
an Executrix) or bank or trust company named in a decedent's Will to carry out the provisions
of the Will and administer the decedent's estate. A decedent is someone
who has died, and the decedent's "estate" is all of the property
owned by that individual at the time of his or her death.
A Will can appoint more than one Executor. In some
states, such as Florida, an Executor is called a Personal Representative.
If a person dies without a Will (or if there is a Will but no Executor
is named or is willing to act), the individual appointed by the court
to wind up the decedent's affairs is called an Administrator. The law
provides that Executors are entitled to commissions for their services,
which are paid from the estate unless waived by the Executor. It is
not unusual for individual family members or friends who serve as Executors
to waive commissions. Banks or trust companies, however, will seek
compensation, and will usually serve only if the estate is substantial
enough in size to meet the minimum fee requirements set by that particular
bank or trust company.
What Does an Executor Do?
The Executor is responsible for having the Will probated, collecting
those assets of the decedent that pass under the Will (i.e., not joint
insurance and pension benefits payable to named beneficiaries, and the
like), paying the decedent's debts (including funeral expenses), paying
administration expenses, and paying any taxes that are due from the estate.
Such taxes can include the decedent's final income taxes, gift taxes, the
federal or state estate taxes due, if any, and income taxes on income earned
by the estate during the period of administration.
During the administration of the estate, which can
take anywhere from a few months to several years depending on the size
and complexity of the estate, the Executor is generally responsible
for investing and managing the estate's assets and providing for the
management of any real estate or cooperative apartment. Once all of
the bills and taxes have been paid, the Executor is responsible for
distributing the remaining assets in accordance with the terms of the
decedent's Will. If the decedent has made any pledges or agreements
during his or her life, the Executor must also determine if the obligations
are binding, and if so, must ensure that the estate complies. If the
Executor has any question as to either the enforceability of such agreements
or the terms of the Will, it is his or her responsibility to take the
matter before a judge and let the judge decide. Finally, the Executor
will be required to account to the beneficiaries (and sometimes to
the Court) for every asset collected, all gains and losses, all income
and other receipts during administration, and all of the property paid
out or distributed to the decedent's creditors and beneficiaries.
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Who Should Be Named Executor?
Being the Executor of a Will is a major responsibility, although the
attorney can be of substantial assistance with a good portion of the task.
The Executor is required by law to wind up the decedent's affairs, and to carry
out the terms of the decedent's Will. The Executor is personally responsible
for the payment of all of the decedent's bills and taxes to the extent of the
estate's assets. Therefore, if the estate's assets are distributed to anyone
other than (1) the decedent's creditors and (2) the decedent's beneficiaries,
the Executor can be held personally liable. Being an Executor entails a significant
amount of work and the person chosen should be trustworthy, responsible, organized
It is also important to consider the family situation
and the personalities of the individuals who will be benefiting from
the estate or likely to object to the terms of the will. A person making
a Will (a "testator") should give a lot of thought to his or
her specific family dynamics and to the financial astuteness of the
people being considered for the job. Often, the surviving spouse is
an appropriate choice, unless he or she is not experienced in making
personal financial decisions or is likely to be overwhelmed by the
If it does not appear that the surviving spouse could
or should handle the job alone, the spouse is often appointed in conjunction
with a business partner, adult child or sibling, or with an estate
professional such as a bank or an attorney who is knowledgeable about
the testator's affairs. The testator should be aware, however, before
appointing any Executor, that there may be decisions to be made during
the course of the estate administration in which the financial interests
of the surviving spouse and the business partner or other persons interested
in the estate will conflict. It is important to evaluate carefully
the possibility that there may be a conflict of interest among the
beneficiaries or between the Executors before making a final choice
of Executor. In all instances a person or persons should be chosen
who will be able to take into account the interest of the estate as
Do Executors Get Paid?
Executors get paid commissions which are calculated as a percentage of
the value of the "probate estate," less any specific bequests,
legacies or devises (i.e., items of real or personal property left
by the testator to a specific individual). The probate estate is defined
as all property held in the decedent's name. It does not include jointly
held real property (such as a house which passes to a spouse), or any bank
account or other property held jointly with another individual such as
a spouse or child. Such amounts do not pass under the Will. Bank accounts
which are held in trust for another individual, pension plans, life insurance,
IRAs and any other accounts or policies which are paid directly to a beneficiary
and not to the estate itself also do not pass under the Will.
Generally, everything that the decedent owned individually
at the time of his or her death is included in the probate estate.
This includes any business interests or real property owned by the
decedent individually, any stocks, bonds, bank accounts or brokerage
accounts held individually, automobiles, tangible personal property,
works of art, furniture, jewelry and collectibles.
Depending on the size of the estate, if there is more
than one Executor, the Executors may be required to share commissions.
If the value of the probate estate (less any specific bequests of personal
property or cash amounts to named individuals or institutions) is more
than $300,000, each Executor (up to a total of two) is entitled to
be paid a full commission. If more than two Executors are named, they
must split two full commissions, unless the decedent has specifically
provided otherwise in writing.
While a testator can specify in his or her Will that
the named Executors (or any successors) must waive commissions in order
to be eligible to serve, this is only recommended if the person named
is a beneficiary of the estate or a very close personal friend, since
being an Executor is time consuming. A bank or trust company will not
serve as an Executor of an estate unless it is entitled to commissions,
although an attorney may agree to serve without commissions (or for
reduced commissions) if his or her firm will receive legal fees for
work done during the estate administration. The commission rate in
New York for each Executor is 5% on the first $100,000 in the estate,
4% on the next $200,000, 3% on the next $700,000, 2-1/2 % on the next
$4,000,000 and 2% on any amount above $5,000,000. Banks and Trust Companies
may charge more for their services as Executors and Trustees, and particularly
as money managers.
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What is the Surrogate's Court?
The Surrogate's Court is the court in New York where all matters relating to
Wills and Trusts are determined. The Surrogate is the title of the judge in
this particular court, and each county in New York has at least one Surrogate
(New York County, covering Manhattan, has two Surrogates). The Surrogate's
Court handles, among other matters, the probate of Wills and appointment of
Executors, the appointment of Administrators who serve in the role of Executors
for the estates of people who die without a valid Will, and any disputes over
the validity of a Will or the administration of a trust or a decedent's estate.
The Surrogate's Court Clerk can provide an Executor with many forms necessary
for an estate administration and can be a valuable source of information for
a first time Executor. For information on Surrogate's Court procedures an Executor
may contact the Surrogate's Court in the borough or county in which the deceased
person last resided (see list of addresses for Surrogate's
How is a Will Probated?
Probating a Will is the first step in any estate administration. Original
Wills are often left with attorneys rather than kept at home or in
a safe deposit
box. The Executor must locate the original Will to file with the Surrogate's
Court for probate. If the Will is in a safe deposit box, often the Executor
will have to hire an attorney to obtain an order from the Court to open
the box and retrieve the Will. It is best never to keep the original Will
in a safe deposit box, since such arrangements tend to cause delay.
Once the Will has been located, the Executor must make
sure that the probate is handled quickly and efficiently, and the best
way to do this is to hire a lawyer familiar with probate and Surrogate's
Court procedures. Although an Executor is not legally required to obtain
the assistance of an attorney to probate the Will, he or she would
be well advised to do so. The Executor is responsible for probating
the Will, and frequently hires the attorney who prepared the Will or
who knew the decedent well to prepare and file the necessary papers.
The attorney-draftsperson may be more familiar with the nature of the
estate than an outsider, and can explain any terms or provisions in
the Will which are initially unclear to the Executor. If an Executor
does not have a particular attorney in mind, the local bar association
is often an excellent source for referrals.
New York requires that all beneficiaries and fiduciaries
named in a Will as well as all of the decedent's distributees (those
who would benefit if there were no Will) be notified that the Will
is being submitted to probate. Any person who would be adversely affected
by the probate of the Will is given an opportunity to appear in Court
and object. Such a person may sign a waiver (obtained from the Surrogate's
Court) indicating he or she consents to probate. In most cases, no
one has any objection to the Will, and as long as the Surrogate believes
that the testator's last Will is valid, the Will will be admitted to
probate and the person or persons named therein appointed Executors.
In some instances the witnesses to the Will may be required to testify
that the Will is valid.
Generally, an Executor is no longer required to file
a bond with the Court unless the Will requires it. If required, a bond
is generally purchased by the Executor from a bond company. The Executor
pays for the bond with assets from the estate. The bond secures the
amount of the value of the estate, thereby protecting the beneficiaries
from any chance that the Executor will try to steal the estate's assets.
Unless the Will specifically provides otherwise, an Executor will be
required to file a bond if he or she is not a resident of New York
State, is not sufficiently responsible, or is required to hold, manage
or invest real or personal property for the benefit of another person.
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How Does the Executor Find the
The Executor must undertake a thorough search for all of the decedent's assets.
It is the Executor's sole responsibility to locate all of these assets, pay
the taxes on them, if any, and distribute them to the people named as beneficiaries
in the Will. These assets can include social security payments, Blue Cross
reimbursements, CDs, bank accounts, furniture, jewelry, artwork, pension plans,
IRAs, stock certificates, brokerage accounts, real property, partnership interests,
automobiles and life insurance. The location of the assets may be readily available
from the decedent's files or the assets may be hidden away in the decedent's
home, or at banks and in safe deposit boxes. The Executor must locate all assets,
even those which are not "probate assets" such as jointly held property
or accounts or life insurance policies payable directly to beneficiaries, since
the Executor is responsible for including information about such property on
the estate tax returns.
The Executor should go through the decedent's papers
very carefully to locate all of the decedent's assets. Thereafter,
the Executor must transfer all of the probate assets into the name
of the estate. In order to do so all of the banks or brokerage houses
and life insurance companies involved will need to be notified. The
Executor will also have to obtain releases ("tax waivers")
from the New York State Tax Commission to transfer any money or property
valued over $30,000 from the bank to the estate. The attorney for the
estate can be helpful in aiding the Executor by obtaining the tax waivers,
although an attorney's assistance is not required.
The attorney for the estate can also be helpful in
helping prepare an estate inventory. The inventory is required to be
filed by the Executor in the Surrogate's Court on the later of (a)
six months from the date the Executor is appointed, or (b) the date
that the federal or state estate tax return is due (or would have been
due had a return been required), including the time granted for any
extension(s). The inventory must contain the value of all of the decedent's
property as of the date of death, and special inventory forms exist
in each county's Surrogate's Court to aid in its preparation. Alternatively,
the federal or state estate tax return can be filed instead of a separate
inventory. However, if the tax return is filed, a special cover sheet
is still required in each county, and following its filing as an inventory,
the tax return will become a public document. If the estate contains
complex assets (other than cash and marketable securities) such as
limited partnership interests, rental properties or oil and gas interests,
the Executor must hire competent appraisers to prepare valuation statements
for inclusion with both the inventory and the estate tax returns.
How Does the Executor Determine
a Decedent's Liabilities?
The Executor must pay all of the decedent's debts, including unpaid bills,
medical expenses, funeral costs, loans and income taxes. Before paying any
debts, the Executor must determine what the total debts are, in order to insure
that the estate has sufficient money to pay them all. The Executor has no responsibility
to seek out possible creditors. It is usually fairly easy to determine the
decedent's debts by monitoring his or her mail, but the Executor must make
sure that all claims are genuine before agreeing to pay. Generally, in New
York, the Executor is required to consider all claims received from creditors
within the first seven months of his or her appointment, although there is
a special obligation to insure that all of the decedent's taxes have been paid.
How Should an Executor Invest
During the period of estate administration, the Executor decides
which of the estate's assets to hold and which to sell in order to meet cash needs and to
help the estate earn income. The estate's assets must be managed prudently
and conservatively, and the Executor may be held accountable to the beneficiaries
and the Court for any gross negligence, waste or mismanagement. The Executor
must be vigilant and diligent, and may hire professional help, if the estate
is large enough, to provide advice on the day-to-day management of the assets.
What Taxes Must Be Paid?
Income Taxes. The Executor is responsible for paying
all of the decedent's outstanding income taxes and arranging for
the preparation of his or her final income tax and gift tax return(s).
The Executor is also responsible for paying income tax and filing
income tax returns for any income earned by the estate during the
course of administration. It is often best to hire the decedent's
accountant to prepare the decedent's final income tax and gift tax
returns since he or she is most familiar with the decedent's tax
history and asset structure. However, since many accountants are
unfamiliar with fiduciary returns, it may be necessary to hire a
special fiduciary accountant to prepare the estate's income tax return(s).
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Estate Taxes. The Executor is also responsible
for paying any and all federal and state estate taxes due on the estate
and filing any estate tax returns required even if no tax is due. Estate
tax returns are usually prepared by the estate's attorney, although
estate income tax returns and complex accountings may require the services
of a fiduciary accountant. The estate attorney may have a fiduciary
accountant in his or her office or recommend one who is trustworthy.
Similarly, banks and trust companies usually have such accountants
on staff. Since in sizeable estates there are often complex tax elections
to be made on an estate's tax returns, it is very important that the
Executor hire competent professional help.
When Does the Estate Get
After all of the assets have been collected and the debts and taxes have been
paid, the Executor is responsible for distributing the balance of the estate
assets in accordance with the terms of the Will. Often, the Executor will distribute
certain assets such as furniture and jewelry long before the estate administration
has been completed. However, if the estate encounters unforeseen debts and
assets have already been distributed that cannot be recovered, the Executor
may be personally responsible for the payment of those debts. Therefore, before
any assets are distributed, it is important that the beneficiaries agree in
writing to return them to the estate if the Executor requests refunding.
Thereafter, the Executor will generally pay cash legacies
and again obtain appropriate receipts and releases from the beneficiaries.
It is also customary for the Executor to require the beneficiaries
of such legacies to sign agreements stating that such legacies will
be repaid if the estate is ultimately unable to pay all of its debts.
After the estate is distributed, the Executor is responsible
for preparing an accounting which lists all of the estate assets and
indicates every dollar that has been earned and every dollar that has
been spent or distributed to beneficiaries during the course of the
estate administration. The accounting can be informal if all of the
interested parties are competent adults who agree that an accounting
before the Court is unnecessary. However, it can be to the Executor's
advantage to have a judicial accounting in order to obtain a discharge
from all duties with the blessing of the Court. The accounting will
usually contain a calculation of commissions unless the Executor has
waived compensation. The accounting is the final duty of the Executor
and is often prepared with the help of the estate's attorney and the
same fiduciary accountant who prepared the estate income tax return
The Spouse as Sole Executor
and Sole Beneficiary.
The above paragraphs regarding the probate of the Will, the collection
of assets, the payment of creditors, and the payment of taxes apply
in the case where
the spouse is named as the sole Executor and is also the sole beneficiary.
However, distribution of the estate to the surviving spouse can in this instance
be made at any time since the spouse will continue to be personally liable
to the estate's creditors. In addition, in this instance no accounting need
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Surrogate's Court Clerks.
851 Grand Concourse
Bronx, NY 10451
2 Johnson Street
Brooklyn, NY 11201
Supreme Court Building
Mineola, NY 11501
31 Chambers Street
New York, NY 10007
88-11 Sutphin Blvd.
Jamaica, NY 11435
County Court House
St. George, NY 10301
320 Center Drive
Riverhead, NY 11901
140 Grand Street
White Plains, NY 10602
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