I often meet with beneficiaries months after a loved one has passed. The initial grief gives way to a new anxiety. They’ll tell me, “My brother is the executor of our mother’s estate in Brooklyn. He’s living in her house, driving her car, and we haven’t heard anything about the will. Can he just take everything?”
This fear is common. It stems from a misunderstanding of the executor’s role. An executor is not a new owner of the deceased’s property. They are a steward—a fiduciary appointed to manage the estate’s affairs with the highest degree of loyalty and care. Their job is to carry out the decedent’s wishes, not to enrich themselves at the expense of the heirs.
The law provides a framework for this stewardship, and it has teeth. An executor who oversteps their authority is not just acting unethically; they are violating New York law and can be held personally liable.
An Executor’s Role is a Fiduciary Duty, Not a Windfall
The core concept that governs an executor’s power is fiduciary duty. This is one of the oldest and most serious obligations in our legal system. It means the executor must act solely in the best interests of the estate and its beneficiaries. They cannot engage in self-dealing—for example, selling the estate’s home to themselves for a below-market price—or commingle estate funds with their own.
Think of the executor as a temporary custodian. Their legal authority, granted by the Surrogate’s Court, gives them the power to access and control the estate’s assets. This includes:
- Marshalling all assets—locating bank accounts, real estate, and investments.
- Paying the decedent’s final debts, taxes, and administrative expenses.
- Communicating with beneficiaries about the status of the estate.
- Distributing the remaining property according to the terms of the will.
This authority is a tool for administration, not a license for personal gain. Every action must be justifiable as a benefit to the estate, not to the executor personally. The executor is a manager, not an heir—unless they are also named as a beneficiary in the will. Even then, they must treat their own inheritance separately from their duties as executor.
Statutory Limits on What an Executor Can “Take”
If an executor cannot take everything, what are they entitled to? Their compensation is not arbitrary. New York law is specific about how executors are paid. They are entitled to a commission for their services, and the rate is set by statute.
Under Surrogate’s Court Procedure Act (SCPA) §2307, executor commissions are calculated as a percentage of the value of the principal received and paid out. The rates are tiered:
- 5% on the first $100,000
- 4% on the next $200,000
- 3% on the next $700,000
- 2.5% on the next $4,000,000
- 2% on any amount above $5,000,000
This is the executor’s payment for the significant work involved in settling an estate. It is not a blank check. The executor must account for all assets, and this commission is calculated on the value of the estate they administer. They cannot simply decide to pay themselves more or take assets in lieu of this statutory fee without court approval or the consent of all beneficiaries.
What Can Beneficiaries Do?
Beneficiaries are not powerless when an executor fails to communicate, delays distributions, or appears to be using estate assets for personal benefit. The Surrogate’s Court provides oversight. If you believe an executor is breaching their fiduciary duty, you have legal recourse.
A beneficiary can petition the court to compel the executor to provide a formal accounting. This is a detailed report of every dollar that has come into and gone out of the estate. If the accounting reveals mismanagement or self-dealing, beneficiaries can object. The court can then take action, which may include:
- Denying or reducing the executor’s commission.
- Ordering the executor to return any improperly taken assets.
- Surcharging the executor, meaning they must personally repay the estate for any losses caused by their breach of duty.
- In serious cases, removing the executor and appointing a successor.
The burden of proof is high, and these proceedings can be contentious. But the mechanisms exist precisely to prevent the scenario families fear most—an executor who treats an inheritance as their personal bank account. An executor holds a position of profound trust, and the courts are there to enforce it.
If you are a beneficiary of a New York estate and have concerns about the executor’s conduct, the first step is to understand your rights. We can review the will and the known facts of the estate administration to determine whether a formal demand for an accounting is the appropriate course of action.
