When a Brooklyn family loses a parent, the immediate instinct is to start settling affairs. You locate the original will in a desk drawer, walk into the local bank branch with a death certificate, and ask to close the deceased’s checking account. The teller refuses. You call the mortgage company to negotiate a payoff, and they decline to speak with you. Until a judge officially appoints you as the executor, those assets are locked. The weeks—or sometimes months—between a loved one’s passing and the formal granting of probate represent a frustrating legal limbo. Families often feel paralyzed, unsure of what they are legally permitted to do while waiting on Surrogate’s Court.
The Legal Boundary of Executor Authority
Being named as the executor in a will does not give you immediate authority to act. I remind clients constantly that a will is merely a statement of intention until the court examines it, notifies the next of kin, and issues a decree validating the document. Under New York’s Estates, Powers and Trusts Law (EPTL) § 11-1.3, an executor named in a will has no power to dispose of any part of the estate before Letters Testamentary are granted.
This means you cannot sell the deceased’s real estate. You cannot distribute inheritances to the beneficiaries. You cannot liquidate stock portfolios, and you absolutely cannot use estate funds to pay off the deceased’s credit card balances. If you overstep these boundaries, you breach your fiduciary duty and open yourself up to severe personal liability.
The law recognizes that estates cannot simply be abandoned while the court processes paperwork. EPTL § 11-1.3 grants a nominated executor two specific powers before probate: the authority to pay reasonable funeral expenses and the duty to take action to preserve the estate.
The Duty of Preservation
Your primary job during this waiting period is preservation. You act as a temporary custodian. If the deceased owned a home, you must ensure the physical property remains secure. This involves locking the doors, forwarding the mail to a safe address, and maintaining the homeowner’s insurance policy. If the death occurs during a New York winter, you must keep the heating bills paid so the pipes do not freeze and burst.
If there is a vehicle parked in the driveway, leave it there. Do not let anyone drive it—even if they are the intended beneficiary of that specific car. The insurance liability remains tied to the deceased’s estate, and an accident could trigger a devastating lawsuit.
You must also locate and secure all valuable personal property. We routinely advise clients to remove fine jewelry, cash, and important financial documents from unoccupied homes. Keep these items in a secure location, and maintain a strict, written inventory of everything you move. Stewardship.
Gathering the Required Documentation
While you wait for the legal authority to act, you should begin assembling the paper trail. The probate process requires extensive documentation, and gathering this information early prevents delays later.
- Order death certificates: Obtain multiple original copies. You will need them for life insurance claims, court filings, and eventually, financial institutions.
- Compile financial records: Look for bank statements, investment account summaries, property deeds, mortgage statements, and tax returns from the past three years.
- Locate the original will: Surrogate’s Court requires the original, ink-signed document to grant probate. If you only have a photocopy, the process becomes significantly more adversarial and expensive. Under SCPA § 1407, you must prove to the court that the deceased did not intentionally destroy the original to revoke it.
Handling Creditors Without Paying Them
Families often panic about mounting bills while the estate accounts are frozen. A common mistake is using personal funds to pay the deceased’s debts out of a false sense of obligation. Do not do this. Credit card companies, medical providers, and collection agencies can wait.
You can—and should—notify creditors of the death to stop the harassing phone calls. Provide them with a copy of the death certificate and inform them that the estate is pending in Surrogate’s Court. You are under no obligation to settle these accounts until the estate is officially open and you have legal access to the estate funds.
The only exception is the funeral bill. Banks typically allow you to pay the funeral home directly from the deceased’s frozen bank account if you present an itemized funeral invoice and a death certificate. If you pay the funeral expenses out of your own pocket to expedite the burial, keep the receipt. You are entitled to priority reimbursement from the estate once probate is granted.
Identifying Non-Probate Assets
Finally, use this waiting period to identify which assets actually require probate. Not everything goes through the court system. If the deceased was deliberate in their estate planning, certain assets transfer automatically by operation of law.
Joint bank accounts with rights of survivorship become the immediate property of the surviving owner. Life insurance policies and retirement accounts with clearly designated beneficiaries bypass the estate entirely. If the deceased established a revocable living trust, the assets held within that trust are completely exempt from the probate process. The successor trustee can step in and manage those funds immediately, without waiting for a judge’s permission.
The period before probate is granted requires prudence, restraint, and an understanding of your fiduciary limits. Missteps during this time can lead to personal financial liability for the nominated executor. If you are holding an original will and need to initiate the probate process, schedule an estate administration review with our office to examine the document and prepare your initial Surrogate’s Court petition.
