The responsibilities that fall upon an individual who is named as an executor of estate can be extensive. However, it can be rewarding in that you know you have been asked by a loved one or a close friend to carry out the wishes of that person now that they have passed away. Still, there are pros and cons of being an Executor of an estate that you should know:
It should be noted that just because one is named to be a nominated executor in a will does not necessarily mean that the said person is required to serve. If one does not wish to serve, they can forego that responsibility by signing a renunciation and waiver, at which point the nominated successor executor would step into the role of primary executor. Pursuant to the Estate Powers and Trusts Law (EPTL), there may be certain instances in which an individual may be ineligible to serve, such as if they are a non-domiciliary alien, a convicted felon, or possess other characteristics that would be such person otherwise ineligible to serve (granted this last provision is a bit specious, but bankruptcies and numerous judgments against such a person may be grounds for disqualification).
Furthermore, many people are under the mistaken impression that because an individual is named the executor that this means the person is automatically the executor. That is simply not the case. While the nominated executor has a responsibility to safeguard estate assets and try to carry out the role of administering the estate to some extent, they are not the official executor until the Will is admitted to probate and the executor is granted their fiduciary role by the Surrogate’s Court of whichever county the decedent resided. In the event that there is a will contest (challenge to probate), a nominated executor can be appointed a preliminary executor while the matter is litigated in the Surrogate’s Court. This appointment grants the preliminary executor all of the rights of a full executor EXCEPT for the ability to make distributions of the estate.
Clearly, the most important consideration in determining whether the role of the decedent will be easy or difficult is whether the Will is being contested. If there is a contest, expect the process to take years as opposed to months to be carried out. While the role of the executor may continue during the pendency of the litigation in the form of preliminary executor role, the distributions cannot take place until the matter is either settled or tried in Surrogate’s Court.
In addition, an executor has to wear many hats. For example, they have to work to bring all family members or interested parties together to help ensure a smooth administration of estate business. Furthermore, if there were several creditors of the decedent, there will be much negotiations with the creditor to try and settle any debt, assuming the debt is bona fide. It would make sense that an executor have a good handle on banking and managing assets, and it would be strongly recommended that the estate hires a CPA to oversee any estate income tax returns, or possible estate tax liability if the estate had significant assets above the estate tax threshold.
Should you require the assistance of an experienced estate attorney, please contact the Garden City Law Offices of Michael W. Alpert at (516) 280-7288 or malpert@alpertlegal.com.