{Read in 4 Minutes} As a Trusts and Estates attorney, I represent various people with interest in New York Estates, whether it be Executors, Administrators, creditors, or beneficiaries. I’ve seen it all over the last 20-plus years of practice.
There is a normal process when someone dies. The nominated Executor offers the Will for probate in the Surrogate’s Court. The beneficiaries named in the Will receive a document called Notice of Probate; that’s how they usually learn that the Executor has started the process. Eventually, the Executor will complete the administration of the Estate account and distribute the bequests to the beneficiaries. But what happens if the Executor nominated in the Will never bothers to offer the Will for probate?
Why would a nominated Executor not want to offer the Will for probate? Well, maybe they simply don’t want to be the Executor. While some people view the Executor’s job as an honor, others consider it a thankless job.
Perhaps the Executor has a significant amount of responsibility and is not a beneficiary themselves, so they will be undertaking a considerable amount of work, while everyone else sits back, kicks their feet up, and then waits for their bequests to come in. Or maybe the Executor realizes that they’re not going to be paid much by way of statutory commissions. For whatever reason, this may leave beneficiaries scratching their heads. They understand that they do not get their bequest until probate is complete, but the person who usually starts the proceeding hasn’t offered it for probate.
Beneficiaries here are not helpless. A beneficiary in this circumstance can simply file a Petition for Probate themselves (or, perhaps more realistically, have their attorney prepare and file the form on their behalf), asking the Court to appoint the nominated Executor. Alternatively, if the Executor does not wish to serve, they can request that the Court appoint the nominated Co-Executor or the Successor Executor. The Surrogate’s Court will then issue a Citation to the Executor and give them a Court date for them to appear before the Court and advise the Court whether or not they intend to file the Will for probate.
By the way, if the Will does not name a Successor Executor, or none of the nominated Executors want to serve, the Court can issue Letters of Administration, c.t.a. to an Administrator to carry out the terms of the Will.
While this may be a frustrating process, it may also be the only opportunity that the beneficiaries have to ensure the payment of their bequests. Before taking advantage of this option, the beneficiary should contact the nominated Executor and the successor Executor and ask point-blank if they intend to serve or, at the very least, send a couple of emails. If there’s no response, the beneficiaries can demonstrate to the Court that they’ve at least attempted to contact the respondent. It’s also a good idea to wait at least three or four months after someone has died before hounding the Executor about whether they’re going to probate the Will. Sometimes it may take a long time to get a Death Certificate, or if the Executor was a close loved one, they may be in the mourning process and need a little bit more time before they can hit the ground running.
For more information on this topic, please contact me.