New York Estate Planning & Elder Law Blog
The executor of an estate is an important individual vital to ensuring the deceased’s assets are accounted for, debts are settled, heirs are notified, and ultimately passing the estate through probate and dividing the estate. So long as the last will and testament was notarized and filed with the appropriate court and does not exclude any heirs in violation of New York probate laws, the estate must be divided in accordance with the deceased’s wishes.
While we generally expect the individual acting as the executor to fulfill her duties and responsibly carry our the deceased’s final wishes, it is not uncommon for executors to mismanage estates to the detriment of beneficiaries. The key duties the executor is expected to carry out include the following:
- Locating a copy of the last will and testament
- Filing the petition to probate the will with the right court
- Accounting for assets in the estate, including property, debits, and securities
- Filing the deceased’s tax returns
- Settling debts, taxes, and liens with creditors
- Acting as the administrator to any of the deceased’s business interests
- Dispersing assets to beneficiaries in accordance with the will and testament
New York probate laws consider the executor of the estate to be the fiduciary and the heirs or beneficiaries as the principles, to which a duty to act in their best interest is owned. It is very common for executors to also be beneficiaries to the estate, controlling property over which they may also have a financial interest in.
Though it may seem unthinkable for a close friend or family member to unjustly enrich himself or herself, the power granted to these individuals is sometimes too much to bear and the temptation to do so sets in. There are several grounds New York probate laws allow for the removal of an executor, including gross mismanagement of the estate, improper asset accounting, personal enrichment from the estate, and failure to comply with court order or comply with the deceased’s wishes.
If beneficiaries are aware of this type of mismanagement or enrichment, they need to file affidavits and motions with the probate court reviewing the will which outline the reasons why the executor should be removed. If the probate court judge overseeing the proceedings agrees with the beneficiaries to remove the executor, a new fiduciary will be named by the court to take charge and pass the estate through probate.