A client once came to our Manhattan office with his late father’s will, a document signed and witnessed two decades prior. He believed his role as the named executor was to simply start paying bills and distributing assets. He was surprised to learn that a will is just a set of instructions—it has no legal authority until a judge in Surrogate’s Court says it does. That judicial process is called probate, and it’s the formal mechanism for transferring a legacy from one generation to the next.
For many families, probate is their first direct encounter with the court system. It can feel intimidating, but its purpose is straightforward: to ensure the decedent’s final wishes are carried out lawfully, their debts are settled, and their property is passed to the correct people. My role, and the role of my firm, is to guide the executor through this process, ensuring their actions are legally sound and their fiduciary duties are met.
The Petition: Bringing the Will to Court
Probate doesn’t begin automatically. The process begins when the person nominated as executor files a petition with the Surrogate’s Court in the county where the decedent resided. This petition, along with the original will and a death certificate, asks the court to formally accept the will as valid and to appoint the petitioner as the legal representative of the estate.
The court’s first job is to establish jurisdiction and notify all interested parties. This includes anyone who would inherit if the will were invalid—the “distributees” under New York law—as well as the beneficiaries named in the will itself. These individuals receive a formal notice, called a citation, informing them of the proceeding. They have the right to review the will and, if they have grounds, to object to its admission to probate. This is a critical safeguard built into the system to prevent fraud or honor a more recent, valid will.
Once the court is satisfied that the will is genuine and all necessary parties have been notified, it issues “Letters Testamentary.” This is the official court order that grants the executor the authority to act on behalf of the estate. Without this document, an executor cannot access bank accounts, sell real estate, or manage the decedent’s financial affairs. It transforms them from a nominated person into a court-appointed fiduciary with legal responsibilities.
The Executor’s Duty: Marshalling and Managing the Estate
Receiving Letters Testamentary is not the end of the process—it’s the beginning of the executor’s work. The executor now has a fiduciary duty to act in the best interests of the estate and its beneficiaries. This is the highest standard of care recognized by the law.
The first task is to identify and gather—or “marshal”—all the assets. This involves a meticulous inventory of everything the decedent owned, from bank and brokerage accounts to real estate, vehicles, and personal property. Some assets, like a family home in Brooklyn or a rare art collection, may require a formal appraisal to determine their value for both tax and distribution purposes.
At the same time, the executor must address the decedent’s liabilities. This means identifying potential creditors and providing them with notice of the death. Under the Surrogate’s Court Procedure Act, specifically SCPA §1802, creditors generally have a seven-month period from the date the executor is appointed to present their claims against the estate. The executor is responsible for evaluating these claims, paying all legitimate debts, and filing the decedent’s final income tax returns as well as any required estate tax returns. This must all happen before a single dollar is distributed to the beneficiaries. Stewardship demands prudence.
Accounting and Distributing the Legacy
After all assets have been collected and all debts and taxes have been paid, the executor’s final major duty is to account for their work and distribute the remaining assets. This is done through a formal or informal accounting.
An informal accounting is a detailed report prepared by the executor for the beneficiaries, showing all the money that came in, all the money that went out, and what is left for distribution. If all beneficiaries approve of the accounting, they can sign a “Receipt and Release” form, which acknowledges they have received their inheritance and releases the executor from further liability. This is the most efficient path to closing an estate.
However, if a beneficiary has concerns or objects to the executor’s handling of the estate, a formal accounting may be required. This involves filing the accounting with the court for judicial review and approval. It is a more complex and costly process, but it provides a final, binding resolution to any disputes. Once the accounting is settled, the executor can make the final distributions as directed by the will, fulfilling their duty and honoring the decedent’s legacy.
The probate process is a deliberate one, designed to provide order and certainty during a difficult time. It ensures that the transfer of wealth is transparent, lawful, and fair to all parties involved—creditors and heirs alike.
If you have been named as an executor in a will and are unsure of your responsibilities, the logical first step is to understand the document and the court process it requires. We reserve time each week to conduct an initial review of a will and outline the specific duties of a fiduciary in New York.
