A family in Todt Hill loses its patriarch. His will seems simple enough—it leaves the family home to his three children in equal shares. The eldest son, named as the executor, assumes he can just call a real estate agent and divide the proceeds. He quickly learns his father’s last wishes are now a matter for the Richmond County Surrogate’s Court, and his role is far more demanding than he ever imagined.
This is a story I see play out across the boroughs. When someone dies with a will, the document is not automatically effective. It is a statement of intent. For that intent to become action, the will must be admitted to probate—a court-supervised process that validates the will and officially appoints the executor. It is the beginning of a long journey of stewardship.
The Executor’s Fiduciary Duty
Serving as an executor is not an honorary title. It is a fiduciary role with significant legal responsibilities. From the moment the court issues Letters Testamentary, the executor is legally empowered—and obligated—to manage the decedent’s estate. This is a profound trust.
The first step is marshalling the assets. This means locating, securing, and valuing everything the decedent owned, from bank accounts and investment portfolios to real estate and personal property. It requires meticulous record-keeping. The executor must then notify creditors and pay all legitimate debts of the estate, including final medical bills, credit card balances, and taxes. Only after all obligations are settled can the remaining assets be distributed to the beneficiaries named in the will.
Throughout this process, the executor must act with impartiality and prudence, always in the best interest of the estate and its beneficiaries. Any failure to do so—such as selling a property for less than fair market value or favoring one beneficiary over another—can result in personal liability and litigation.
The Anatomy of a Will Contest
While most wills pass through probate without incident, disputes can arise. When a family member or other interested party believes the will is invalid, they can file objections with the court, initiating a will contest. In my practice, I find these contests typically stem from a few common grounds.
One of the most frequent challenges is a claim of “undue influence,” where a party alleges that the decedent was coerced or manipulated into creating or changing their will. Another is a challenge to “testamentary capacity,” arguing the decedent was not of sound mind when the will was signed. There can also be claims that the will was not executed properly according to New York law—for instance, it was not signed in the presence of two witnesses.
The rules for who can bring such a challenge are strict. Under the Surrogate’s Court Procedure Act (SCPA) §1410, only parties who have a direct financial interest that would be harmed by the will’s admission to probate may file objections. This means a beneficiary who would have inherited more under a prior will—or through intestacy if there were no will at all—has legal standing. These proceedings can be lengthy, emotionally draining, and deplete the very assets the family is trying to preserve.
Probate Is More Than the Will
The probate process extends far beyond simply validating the will. It is the entire administration of the decedent’s financial life after death. The executor must file the decedent’s final income tax returns and, if the estate is large enough, state and federal estate tax returns. They must provide a formal accounting to the beneficiaries, detailing every dollar that came in and every expense that was paid out.
This administrative side of probate is often where executors, especially those without professional guidance, make critical errors. Missing a tax deadline, failing to properly notify a creditor, or distributing assets prematurely can create significant problems. The court’s role is to supervise this process, but the responsibility for executing it correctly falls squarely on the executor’s shoulders. It’s a duty that demands diligence, transparency, and a clear understanding of the law.
For many families, a well-structured trust can bypass this entire court-supervised process. But when a will is the primary estate document, engaging with the Surrogate’s Court is unavoidable. The key is to approach it with intention and a full appreciation of the duties involved.
If you have been named as an executor in a will, your first responsibility is to understand the scope of the task ahead. Before you petition the court, we can provide a preliminary review of the will to identify potential probate complexities and outline the fiduciary duties you will be undertaking.
