Our Long Island Estate Lawyer Team Can Assist with Estate Probate and Administration
Everything about losing a loved one is hard. On top of the grief and learning how to move on without them, there are other matters to consider, like what to do with their assets and debts. Hopefully, your beloved friend or family member prepared an estate plan before they passed away. Regardless, an experienced Long Island estate lawyer at Davidow, Davidow, Siegel & Stern can help you navigate the probate and estate administration process.
Appointing an Executor or Estate Administrator in New York
The process of administering an estate begins with the appointment of an executor or estate administrator. Although the role is similar in either situation, it is called an executor in the event that a person dies with a valid will in place and an administrator in the event that a person dies without a will.
The executor or administrator plays a vital role in settling an estate. He or she is responsible for identifying and gathering all of the assets in the estate, notifying family members, creditors, and other interested parties, and ensuring that debts are paid and tax returns are filed. The executor or administrator then must have the remaining assets distributed according to the will or as directed by law if there is no will.
Specifically, the process of appointing and serving as an executor or estate administrator is as follows:
- If a will exists and it names an executor – If the deceased left a last will and testament then the document will be submitted along with a Petition to open probate as well as a valid death certificate. This will typically be performed by the person named as the executor. If the Court accepts the will as valid, then the person named as the executor will administer the estate.
- If a will exists and it does not name an executor – While most last wills and testaments will name an executor, it is not required for the will to be valid. If no executor is named in the will, then an individual may Petition the Court to serve as an executor. As explained below, New York has a defined order of preference in choosing who will serve as the executor. If no one from the predefined order is able or willing to serve, then other heirs may Petition the Court to serve as the executor.
- If a will exists, but the named executor is unable or unwilling to serve – It is not uncommon for a named executor to be unable or unwilling to serve. Examples of this can include when the named executor is already deceased, cannot be found, or is otherwise disqualified under New York law. Also, a named executor does not have to serve in the role simply because they were named in the will. If the will does not name an “alternate executor,” as some do, then other heirs may Petition the Court to serve as the executor of the estate.
- If a will exists, but it is found to be invalid – The Court will not accept a last will and testament on the sole basis of it being submitted for probate for probate. The will must be valid. There are a number of reasons why the will may not be accepted. If the will is found to be invalid, then the Court will go through the process of appointing the executor in the same way as it would if there were no will at all. Reasons for which a will may be disregarded include the document not being prepared in accordance with state law. Also, a will may be disregarded after a successful challenge by an heir or other individual with standing. Reasons for such challenges can include claims that the will is a forgery, that the will was signed under duress, that the will was revoked after it was made, and more.
- If the testator died without a will – If the testator passed away without a valid will then one may Petition the Court to serve as the administrator. The order of priority which the Court will give to potential administrators is explained below.
Once an executor or administrator is chosen, then they may be required to post a bond before they can proceed in their role. Sometimes a last will and testament may state that a bond should not be required of the executor. If there are disputes between the heirs and the executor, however, then the Court may still require a bond. Also, if the deceased passed without a final will then a bond will typically be required.
The executor or administrator cannot act until he or she gets approval from a court in the county where the decedent lived before passing away. A judge will then issue letters of administration appointing an administrator.
Who Can Be Named an Estate Administrator?
New York law limits who can be appointed as an estate administrator when a person dies without a will. The court will appoint an administrator from this list, in order of priority:
- Surviving Spouse
The person with the highest priority gets the first opportunity unless he or she is disqualified. If there is no one from this list who can serve as an administrator, other heirs who qualify may be tapped for the role. Multiple people may have the same priority position in some situations, giving each the same right to serve as the administrator. This commonly occurs, for instance, when a person dies after his or her spouse has already passed and leaves behind multiple children. There are a few options in these situations. The people with the same priority right can agree among themselves who will serve or they can decide to fill the role together. If they cannot come to an agreement, they can fight it out in court and let a judge determine who is best qualified for the job.
A Long Island estate lawyer at our firm can help you navigate disputes over who will serve as administrator, often without having to go to court.
State law disqualifies certain people from serving as an administrator in New York.
- Children under the age of 18
- Convicted felons
- People who are incapacitated
- Non-citizens and people who are not US permanent residents
- People who are deemed “unfit” to carry out the duties
The “unfit” category is intentionally broad and vague. It may include people with a history of substance abuse, dishonesty, or poor judgment.
Executor and Administrator Responsibilities According to a Long Island Estate Lawyer
Being named an executor or estate administrator is a big job. It means you are essentially responsible for every step necessary to settle the estate. That includes:
- Taking control of assets: This is one of the first steps after getting court approval to act. It may require getting keys to houses and vehicles, retrieving property from family and friends, and working with financial institutions to get access to accounts.
- Managing the estate: This means ensuring that the assets are safe and not being dwindled. The executor or administrator must ensure that utilities, insurance, and other bills are paid and that physical property is maintained and secure.
- Paying debts: Before assets can be distributed to beneficiaries, creditors must be paid. Common debts include credit card bills, personal loans, and outstanding taxes.
- Distributing assets: This is one of the final steps for the executor or estate administrator. The remaining assets are distributed to beneficiaries in accordance with the will or state law, depending on the situation.
Settling an estate can be an unfortunately complicated process, especially for people who are not regularly involved in it. If you have been named an executor or estate administrator, the good news is that you do not need to go it alone. A Long Island estate lawyer at DDSS can help ensure that you have properly carried out your responsibilities as an executor or administrator.
Fiduciary Duty for Executors and Administrators
Executors and administrators have a fiduciary duty to the estate. They are required to act impartially and in the best interests of the estate, including keeping beneficiaries and other relevant parties informed. They are also expected to administer the estate in an orderly and prudent manner.
An executor or administrator who does not live up to this duty faces possible legal consequences. He or she may be personally liable for errors and any financial losses that occur as a result.
The Long Island estate lawyer team at DDSS is well-versed in the legal responsibilities of settling an estate. We stand ready to assist executors and administrators in carrying out their duties.
Executors and Administrators Must Account For All Transactions
One of the most important aspects of an administrator’s fiduciary duties is to properly account for all assets, debts, and transactions related to the estate. All assets and debts must be assigned a proper value. Any transfer, sale, or payment of these items must then be recorded in an accounting schedule or ledger. An accounting of the estate will be submitted to the Court. Also, any heir may request an accounting of the estate, from the executor, at any time. If an heir believes that the executor is mismanaging their estate, or has otherwise breached their fiduciary duty, then they may file an accounting proceeding with the Court.
Accounting for an estate’s assets and debts will be straightforward in some instances and difficult in others. If, for example, an estate consists solely of a home without a mortgage and bank accounts then valuing residence will simply require an appraisal. The balances of the bank accounts will speak for themselves. Accounting will become more complicated, however, if the deceased owned a business which must be liquidated or if they owned other assets which have a more subjective value. Examples of assets with subjective values can include rare art, intellectual property such as patents, rare cars, or collectables which are bought and sold in very narrow markets. In such situations, the estate may be best served if the executor retains third-party professionals to help place a value on such items before attempting to sell them. Also, it may be that the utilization of third-parties, such as auction houses, are the only way to accurately price and sell such items.
Heirs may bring an accounting proceeding if they believe the estate is being mismanaged or if they believe the executor is somehow breaching their fiduciary duty. The executor will present the accounting and attempt to prove that there has been no breach or mismanagement. Examples of how an executor may have breached their fiduciary duty can include selling assets to a friend or acquaintance for less than market value, engaging in self-dealing, or taking other actions which put the executor’s interests ahead of the estate’s. Examples of mismanagement can be selling assets for less than fair-market value out of either ignorance or a desire to complete the probate quickly. Other examples of mismanagement can include failing to negotiate on a debt of the estate before paying it in full, etc. Whether or not an executor’s actions were improper will always depend on the specific facts of the case.
Handling an estate’s accounting can quickly become complicated. This is especially true in matters where the distribution of assets will require the liquidation of property as opposed to simply transferring the title. The greater the amount of property which must be sold, and the more complex its nature, then the more likely it is that there will be disagreements over the accounting. An executor who works closely with an estate planning lawyer, throughout the handling of probate, can reduce the possibility of being involved in an accounting proceeding.
Do I Need a Long Island Estate Lawyer?
There is simply no reason to go it alone.
For people planning for the future, there is too much at stake to wing it. An estate lawyer can help you protect your assets and ensure that your loved ones are provided for when you pass away.
For executors and administrators, it is vital to have the counsel of a professional who knows how to navigate the legal system. With an experienced estate attorney by your side, you can efficiently settle the estate with the confidence of knowing that you have carried out your loved one’s wishes and met your legal responsibilities.
What Happens If Someone Dies Without a Will?
If someone dies without a Will, the process of distributing their estate depends on the value of their estate. If they died with less than $50,000 in assets, then an easier small estate proceeding can be filed in the Surrogate’s Court. If there is more than $50,000 in assets, a formal Administration proceeding must be filed. In either case, the law of New York will determine who will be in charge and who will inherit.
What Is Probate and is it Required?
Probate is the legal process of activating and following the terms of a will. Probate is required when assets are solely titled in the deceased’s name without a beneficiary. For example, if someone died with a bank account in their name, without a beneficiary, the bank will not release the funds until the Will is probated and the executor has legal authority granted by the court. Remember, the executor has no authority until the will is probated.
What Are The Responsibilities of an Executor?
Executors are tasked with the handling of the estate according to the terms of the Will while under the supervision of the Surrogate’s Court. Responsibilities of the Executor may include:
- Filing of documents, such as the Probate Petition and supporting documents, Will and Death Certificate
- Taking inventory of the assets that pass under the Will
- Collection of all probate assets titled in the sole name of the decedent
- Paying off debts incurred by the decedent
- Paying expenses related to the distribution of the estate
- Paying taxes owed by the decedent and/or the estate
- Managing the assets of the estate
- Distribution of all remaining assets to the beneficiaries named in the Will
- Maintaining an accounting of all assets, debits, and distributions and providing this accounting to the Surrogate’s Court if judicially required
Speak With a Long Island Estate Lawyer at DDSS Today
If you or a loved one is looking to plan for the future or are trying to settle an estate the Long Island estate lawyer team at DDSS can help. We are pleased to meet with clients in person or via Zoom, FaceTime, and other video conferencing tools. Call us, contact us online, or use the live chat function to schedule a consultation with a Long Island estate lawyer today.