A family in Carroll Gardens recently called my office. Their mother had passed away, leaving a will that named her eldest son as executor. He had the document, neatly signed and witnessed. He assumed his role was simple—pay a few bills, divide the brownstone and the bank accounts, and be done. He was surprised when I told him his work would begin and end at the Kings County Surrogate’s Court on Johnson Street, and that the process would likely take the better part of a year.
This is a common misconception. Many people believe a will allows you to bypass the courts entirely. It does not. A will is a set of instructions for the court. The legal process of validating that will and officially appointing the executor to carry out its terms is called probate. In Brooklyn, it is a formal, exacting procedure that must be followed to the letter.
The Executor’s Role is a Fiduciary Duty, Not a Task List
When the court appoints you as an executor, you become a fiduciary. This is not a managerial role—it is a profound legal duty to act in the best interests of the estate and its beneficiaries, placing their interests above your own. This duty of stewardship is the core of the executor’s responsibility.
Your duties will include:
- Marshalling Assets: Locating, securing, and inventorying everything the decedent owned. This can range from bank accounts and real estate in Park Slope to digital assets and stock portfolios.
- Paying Legitimate Debts: Notifying creditors, evaluating claims, and paying the estate’s final bills and taxes from estate funds. This must be done before any assets are distributed to heirs.
- Filing with the Court: Submitting the original will and a probate petition to the Surrogate’s Court, notifying all interested parties, and responding to any court inquiries.
- Distributing the Legacy: Once all debts and expenses are paid and the court gives its approval, you will distribute the remaining assets to the beneficiaries as directed by the will.
Each of these steps involves strict deadlines and precise documentation. A misstep—like distributing assets too early, before a surprise creditor appears—can expose an executor to personal financial liability. The role demands diligence, impartiality, and a clear understanding of New York law.
When a Will Is Contested or Defective
The probate process is straightforward when the will is clear and no one objects. But what happens when things are not so simple? Over my years of practice, I have seen many situations where the path forward becomes contentious. A sibling may feel they were unfairly left out. A creditor may claim the will is a fraud. Or the original document itself may be flawed.
For example, what if the original signed will cannot be found, but you have a photocopy? The court presumes a missing will was intentionally revoked. To probate a copy of a lost or destroyed will, the executor must overcome this presumption in a formal proceeding under the Surrogate’s Court Procedure Act. SCPA § 1407 lays out the strict requirements: you must prove the will was not revoked, demonstrate its provisions clearly, and show that it was properly executed. This is a high legal bar to clear and almost always requires an attorney’s involvement.
Other contests might arise over claims of undue influence—that a caregiver pressured the decedent into changing their will—or lack of capacity, arguing the person was not of sound mind when they signed it. These disputes can turn probate into a lengthy and emotionally draining court battle, freezing the estate’s assets until the conflict is resolved.
Administration: When There Is No Will
The court process is not just for people who die with a will. If a Brooklyn resident dies without one, their estate is “intestate.” The court still oversees the process, but it is called an administration proceeding, not probate. Instead of an executor, the court appoints an administrator to perform the same duties of gathering assets and paying debts.
The crucial difference is how the assets are distributed. Without a will to provide instructions, the law steps in. New York’s Estates, Powers and Trusts Law (EPTL) provides a rigid hierarchy for who inherits. A surviving spouse and children are first in line, but the proportions are set by statute. If there are no immediate family members, the law looks to parents, siblings, and more distant relatives. This formula rarely aligns with what the person would have wanted. It makes no provision for a lifelong partner, a favorite niece, or a close friend. The law is impersonal—it simply follows the bloodlines.
Whether you are facing a probate or an administration, the oversight of the Surrogate’s Court is a constant. It is designed to protect all parties, but its rules are unyielding. As an executor or administrator, you are accountable to the court for every action you take.
If you have been named as an executor in a loved one’s will and are facing the probate process, the first step is understanding your legal duties. We regularly provide a confidential consultation to review the will, identify potential issues, and outline the specific steps required by the Kings County Surrogate’s Court.
