The word “estate” can have several meanings. As USLegal explains, however, when most people use this word, they mean the assets and possessions a decedent owned at the time (s)he died and which go through probate before being distributed to the decedent’s heirs and beneficiaries according to his or her will.
The probate estate does not include anything that the decedent put into a trust, gave away, or passed directly to someone by way of pay- or transfer-on-death designations, retirement account or insurance policy beneficiary designations, etc. The probate estate also does not include anything the decedent owned jointly with someone else, like a bank account, home or vehicle.
If someone named you as executor of his or her will, and therefore of the probate estate after (s)he dies, Kiplinger points out that you have many duties to perform in this capacity. Depending on the size, extent and complexity of the estate, you may spend substantial time and energy fulfilling your duties.
Those duties generally occur in five stages:
- Finding the will and protecting estate property
- Submitting the will to the court
- Administering the estate, including paying all its bills
- Paying the beneficiaries and yourself
- Closing the estate
The first thing you need to do is gain access to the decedent’s home. If his or her surviving spouse and/or children is/are living there, this should be simple and also will make your other initial duties easier. If the home is empty, however, you will need the services of a locksmith, not only to get in, but also to change the locks. You may need to have a law enforcement officer accompany you.
Once there, lock all windows and doors, collect all prescription medicines so you can properly dispose of them, and collect any accumulated mail. You will need to file a change of address form with the Post Office so the decedent’s mail can be forwarded to you.
Search all desk and other drawers for the original, not a copy, of the decedent’s will. Only the original gives you the right and power to act as the decedent’s executor. If you cannot find it, it is possible that the decedent kept it in a safe deposit box. Call his or her bank to see if the decedent has one. If so, you will need a court order to access it unless the decedent “owned” it jointly with someone else and that person is willing to open it and give you the original will.
The next thing you need to do is order several certified copies of the decedent’s death certificate. You will need these when closing the decedent’s bank and other accounts, getting his or her name off the voter registration rolls, etc. Be aware that it can take 6-8 weeks to get these death certificates.
Filing the Will for Probate
Per NYCourts.gov, you must file the original will for probate in the Surrogate’s Court in the county where the decedent resided. Their website also has complete instructions for obtaining copies of the decedent’s death certificate and for petitioning the court for permission to access the decedent’s safe deposit box.
It is a good idea to hire a knowledgeable and experienced probate administration attorney before filing for probate. Probate administration can be a highly complicated process, and as executor, you could be personally liable for any mistakes or negligent acts you commit. In addition, creditors and others could file objections to the estate if they believe you have done something wrong, intentionally or inadvertently. Such estate disputes are not at all uncommon.
Administering the estate
Once the Surrogate’s Court issues letters testamentary to you allowing you to administer the decedent’s estate, your real work begins. You must do the following:
- Gather all necessary estate information.
- Collect all estate assets.
- If necessary, liquidate and sell estate property.
- Pay all creditors.
- Pay the decedent’s personal federal and state income taxes.
- Pay any applicable federal and state estate taxes.
- Pay executor fees and attorney fees.
- Account for all estate expenses you paid.
- Distribute the remaining estate assets and property to the decedent’s beneficiaries.
- Close the estate.
Be aware that federal estate tax laws recently changed. As reported in the New York Times, Congress passed a new tax law in December that raises the threshold at which estates are taxed. Under the old law applying to decedents who died before January 1, 2018, any estate with assets totaling over $5.49 million is taxed. Under the new law applying to decedents who die between 2018 and 2026, only estates worth more than $11.2 million are taxed.
Per the New York Department of Taxation and Finance, New York’s estate tax threshold is tied to the federal threshold. Consequently, an estate also must pay New York estate taxes if the decedent’s federal gross estate plus the amount of any includible gifts exceeds whichever federal threshold applies.
Virtually nothing about being an estate’s executor is easy. And once you accept the job, you are not allowed to quit except under extraordinary circumstances. As stated above, you would do well to have the advice and counsel of an experienced probate administration attorney.