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A Loved One Dies — You Are Executor in The Will — What To Do?

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A Loved One Dies — You Are Executor in The Will — What To Do?

June 06, 2012 - 16:30
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A common phone call to my law office is: “My mother/father passed away, and I’m the executor in the will, what do I have to do?”

As the designated executor in a will, you will need to file a petition, along with supporting documents, in the Surrogate Court in the county where the deceased resided. (This post only addresses NYS law). The petition will seek a decree granting probate and letters testamentary – official court documents legally appointing you as executor, so that you can conduct financial and other transactions on the estate’s behalf. When filing the petition, you are agreeing to act responsibly in a fiduciary capacity in the best interests of the estate and to fully follow the deceased’s wishes in the will.

I recommend retaining an attorney at the outset to represent the estate and guide you through the probate process. You will need to assemble documents, including an original death certificate; the original will (and codicils, if they exist); original trust documents (if they exist); addresses for executors and beneficiaries in the will; and an itemization of assets such as personal property and real property (home, coop or condo) in the deceased’s estate.

You will need to pay a fee to start your probate action in Surrogate Court on a sliding-scale based on the amount of the estate, and it varies from about $420 to $1,250. You will also need to open up a bank account for the estate.

If the deceased’s estate was less than $30,000, you can utilize the easier small estate affidavit program – see link at: http://www.nycourthelp.gov/diy/smallEstate.html

After the Surrogate Court grants you the letters testamentary, you will begin liquidating the personal and real property and deposit the money into the estate bank account, so that it can be distributed to the beneficiaries as set forth in the will. When you are finished distributing the estate, you will need to file an inventory of assets and affidavit of completion with the Surrogate Court to demonstrate that the will has been fully complied with. You will also be responsible for filing any federal and state tax returns for the estate.

This is merely a general summary of issues to be addressed when you are the executor named in a will. Of course, the issues discussed here can be more complicated, and I have not mentioned every possible issue you may face. However, once again, an executor should meet with an attorney as soon as possible after the death to discuss the estate and probate process. And please feel free to contact me if you have any questions about this post or the probate process.

Jim Maisano 75pxJames Maisano, Esq. is a practicing attorney who also serves on the Westchester Board of Legislators. Check out Jim’s website at www.JamesMaisanoEsq.com, and you can also find this post on his Legal Blog (please see disclaimer on the Legal Blog). Jim’s law office can be contacted at [email protected] or (914) 636-1621

There are 3 Comments

This is very useful information. We were recently discussing this exact issue in my house.

Very solid advice,

I am so thankful I had a college friend that was involved with Elder Law, Estate Planning and was very knowledgeable of what needed to be done. The process is not just for when you, a parent or a loved one die. Advance planning is very important in today’s world of emergency medicine and hospital care. You don’t have to be old to have an accident or get sick. Having planned in advance helped me deal with the care of both parents to the end with less stress and indecision. Having power of attorney, living wills, healthcare proxies and wills are what saved me, my wife, and my family and got us through the process. Navigating Emergency Room doctors at midnight can lead to wrong decisions for a love one. Having the health Care Proxy told the doctors what care my parents request while alive and towards the end. Once my daughter was born we updated everything so there was a game plan in place for the future. That was when I found out my parents wills were twenty years old and out dated with need for more information for today’s medical needs.

Don’t Wait! Plan Ahead!

Westchester County Legislator Jim Maisano's picture

Thanks for sharing those helpful thoughts Bob!

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