Being named executor in a will is an appointment, not a title. The role carries specific duties under New York law, and an executor who handles them casually can end up personally responsible.
What you need to know
- A will nominates an executor; only the Surrogate’s Court appoints one, by issuing letters testamentary.
- The core duties are to marshal assets, give required notices, pay valid debts and taxes in the right order, account, and distribute what remains.
- An executor is a fiduciary. The standard is loyalty and prudence, not perfection, but self-dealing and inattention both create exposure.
- Beneficiaries have the right to information and, in most cases, the right to compel a formal accounting.
- Executors are entitled to commissions set by New York law, and the estate — not the executor — pays reasonable legal and administrative costs.
First: getting appointed
A will names the person the decedent wanted to serve. That nomination has no legal force until the will is admitted to probate and the court issues letters testamentary. Banks, transfer agents, and title companies will ask for that document, often with a recent court certification, before they will do anything.
To get there, the nominated executor files a petition in the Surrogate’s Court for the county where the decedent lived — Riverhead for Suffolk County, Mineola for Nassau County — with the original will, the death certificate, and a list of the decedent’s distributees, meaning the relatives who would have inherited if there had been no will. Those relatives must receive notice and a chance to appear. When everyone consents, the process is relatively administrative. When someone objects, it becomes litigation.
If the estate needs immediate attention while probate is pending — a vacant house, a mortgage coming due, a business — the court can issue preliminary letters testamentary, which allow the nominated executor to protect and manage assets before the will is finally admitted. Preliminary letters typically do not authorize distributions to beneficiaries.
Executor versus administrator. An executor is named in a will and receives letters testamentary. When there is no valid will, a relative petitions to be appointed administrator and receives letters of administration, with distribution governed by New York’s intestacy statute rather than by a document. The day-to-day duties are largely the same.
Duty one: marshal the assets
Marshaling means locating, taking control of, and safeguarding everything the estate owns. In practice:
- Open a dedicated estate checking account under the estate’s own taxpayer identification number
- Transfer sole-name bank and brokerage balances into that account
- Confirm which assets pass outside the estate by joint title or beneficiary designation — those are not yours to collect
- Take control of real estate: keep insurance in force, keep the mortgage current, and maintain the property
- Inventory tangible personal property before anyone removes anything
- Obtain date-of-death values, including an appraisal for real estate and for items of significant value
Never mix estate money with your own. Commingling is the single fastest way to turn a routine administration into a contested accounting, because once funds are blended, an executor is left proving a negative.
Date-of-death values matter beyond the court file. Inherited real estate and securities generally receive a stepped-up income tax basis as of the date of death, which affects what a beneficiary owes if the asset is later sold. Getting a defensible appraisal early is cheaper than reconstructing value years later.
Duty two: notices and communication
Beneficiaries under the will must be notified, and distributees are entitled to notice of the probate proceeding itself. Beyond what the court requires, an executor who communicates regularly avoids most disputes. Many contested accountings in Suffolk and Nassau County start not with theft but with silence — a beneficiary who heard nothing for a year and assumed the worst.
A short written update every few months, describing what has been collected, what remains, and what is holding things up, costs almost nothing and prevents a great deal.
Duty three: pay valid debts and taxes
An executor pays debts that are actually owed, and pays them in the order New York sets. That order generally puts administration expenses and funeral costs near the top, followed by certain preferred claims, with ordinary unsecured creditors such as credit cards paid later.
Two mistakes are common. The first is paying a bill because it arrived. Claims can be disputed, and an executor is entitled to ask for substantiation. The second is paying unsecured creditors early in an estate that may not have enough to go around. If the estate turns out to be insolvent, an executor who paid a credit card ahead of a higher-priority claim can be surcharged for the difference.
Where the decedent received Medicaid benefits, the state may present a claim against the estate. That interacts with planning done years earlier, and the analysis belongs with counsel — the firm’s elder law and Medicaid page covers the background.
Tax filings
| Return | What it covers |
|---|---|
| Final personal income tax returns | The decedent’s income from January 1 through the date of death, federal and New York |
| Estate income tax returns | Income earned by estate assets after death — interest, dividends, rent — while the estate remains open |
| Estate tax returns | Filed only for estates above the applicable federal or New York threshold; the current figures change and should be confirmed |
New York’s estate tax has a feature worth flagging: the benefit of the exclusion phases out for estates that exceed it by a modest margin, which can produce a sharp result just above the line. Whether a return is required at all depends on the current threshold, so confirm the figure rather than relying on what was true in a prior year.
Duty four: account
An executor must be able to show where every dollar went. An accounting is a formal statement of what came in, what went out, what remains, and how the executor proposes to distribute it.
Most estates settle informally: the executor circulates an accounting to the beneficiaries, they sign a receipt and release, and the estate closes without further court involvement. That is faster and less expensive, and it is the ordinary outcome when relationships are intact.
If a beneficiary will not sign, or if the executor wants the protection of a court decree, the accounting can be filed with the Surrogate’s Court in a formal proceeding. A beneficiary who is not receiving information also has the ability to petition the court to compel an accounting. That right is real, and executors should assume it may be used.
Keep records as you go. Every deposit, every check, every receipt, every invoice, with a note about what it was for. Reconstructing three years of activity from memory is where executors get into trouble, even honest ones.
Duty five: distribute
Distribution comes last, after debts, taxes, and expenses are addressed and the time for claims has been considered. Distributing early feels generous and is often the riskiest thing an executor does, because money paid out is difficult to get back if a claim surfaces afterward.
Specific bequests are satisfied first, then the residue is divided as the will directs. Where a will leaves real estate that has to be sold, the sale mechanics deserve their own attention; the firm’s estate administration and real estate pages both address the closing side.
Where a beneficiary is a minor or cannot be located, the funds usually cannot simply be held informally. The court has procedures for both situations, and an executor should not improvise.
What an executor is paid, and what it costs
New York sets executor commissions by statute as a percentage of the assets the executor receives and pays out, on a sliding scale that decreases as the estate grows. Some assets, notably specifically devised real estate, are treated differently. Commissions are taxable income to the executor; a family member serving as executor who is also a beneficiary sometimes waives them for that reason.
The estate — not the executor personally — pays reasonable legal fees, appraisal costs, court costs, and the expenses of maintaining property. Filing costs in the Surrogate’s Court are set by a schedule that changes periodically, so confirm the current amounts rather than budgeting from an older figure.
Personal exposure, and how to limit it
Fiduciary duty means the executor acts for the beneficiaries, not for themselves. Breaches that come up repeatedly include selling estate property to yourself or a relative below market, favoring one beneficiary, letting assets sit uninvested for years, allowing insurance to lapse, and failing to account.
An executor who breaches can be surcharged — ordered to repay the estate personally — and in serious cases removed. The practical protections are unglamorous: separate accounts, contemporaneous records, appraisals for anything sold, written updates to beneficiaries, and counsel involved before a judgment call rather than after.
Serving is also optional. A person nominated in a will may decline, and an appointed executor may resign with court approval. Declining at the outset is far simpler than stepping away mid-administration, and there is no obligation to accept a job you do not have the time or the relationships to do well.
The Law Offices of Christine Thea Rubinstein & Associates P.C. represents executors and administrators throughout Suffolk and Nassau County, and offers a free and confidential initial phone consultation. Call 1-800-488-6734 or reach the firm through the contact page.
Frequently asked questions
Can I be held personally responsible for the decedent’s debts?
Not for the debts themselves — those are paid from estate assets, and if there is nothing left, unsecured creditors generally go unpaid. An executor can become personally responsible for their own mistakes, such as distributing to beneficiaries before paying higher-priority claims or taxes.
How long does an executor’s job usually take?
An uncomplicated New York estate often runs several months to about a year. Estates with real estate to sell, an estate tax return, a business interest, or a dispute among beneficiaries commonly take longer. The timeline depends heavily on the facts.
Do all the beneficiaries have to agree with what I do?
No. An executor exercises judgment and is not required to obtain consensus. What an executor does owe is loyalty, prudence, and an eventual accounting that beneficiaries can examine and, if they disagree, challenge in the Surrogate’s Court.
Can two people serve as co-executors?
Yes, and wills often name co-executors. They generally must act together, which works well when the two communicate and poorly when they do not. Deadlock between co-executors can require a court application to break, so the choice deserves thought at the drafting stage — a point covered on the firm’s estate planning page.
What if I have already made a mistake?
Raise it early with counsel. Many errors — a payment made out of order, funds briefly held in the wrong account — can be corrected or explained if addressed promptly. Concealment is what converts a manageable problem into a surcharge proceeding.