A loved one dies — you are executor in the will — what to do?

By Jim Maisano

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.

James Maisano, Esq.
(914) 636-1621
(This post was suggested by my lovely wife Jean).

4 responses

  1. I received an email from the Bennie Giles, the City Clerk of New Rochelle, to add some information on this post regarding obtaining death certificates:

    Hi Jim,

    Thanks for the information regarding executor in the will.

    I would like to point out that death certificates are issued to the surviving parent(s), spouse and/or surviving children of the deceased. The funeral director can request copies of a death certificate for a period of six months after a person has deceased. After that if the person is not one of the above they must have a lawyer or the requesting institution request death certificates.

    It is a good idea for the person requesting death certificates to obtain at least five to ten initially and then take a look at a person’s estate and determine if more death certificates are needed before the end of the six month period. Death certificates are ten dollars each and must be obtained in the community where the person died.

    Jim, I hope this is helpful information.

    Take care and enjoy the day,

    Bennie Giles

    City Clerk, New Rochelle

  2. JoAnn Santoro | Reply

    FYI I work in Surrogates Court Dutchess County…..if you ever need anything! Its good to know that you specialize in SCPA…

  3. John R. Cassone | Reply

    As they say, behind every successfull man there is a smart woman!
    Best regards: John

  4. I really seem to agree with pretty much everything that ended up being
    posted within “A loved one dies – you are executor in the will
    – what to do? James Maisano, Esq. – Legal Blog – Attorney in New
    Rochelle and Westchester County”. Thanks a lot for all
    the details.I appreciate it,Dominic

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