Executor vs Administrator: What Is the Difference in New York?

Estate planning in New York is a very involved process. When an individual passes away, their estate would have to pass through a court process before the beneficiaries can have access to their inheritance. Overseeing the inventory, verification, and division of the individual’s estate is not an easy undertaking.. Managing the estate through probate or administration is a very important role fulfilled by either an executor or an administrator. 

Being the executor or administrator of an estate is not a role to be taken lightly. Nonperformance of your duties can result in penalties. You may also be required to deal with will contests and creditors who make claims against the estate. A skilled estate planning lawyer can help you understand and assist you in performing your duties. Our experienced New York estate planning attorneys at New York Legacy Lawyers are experienced in assisting executors and administrators through the often complicated probate process. To learn more about how we can help, contact our office today at (718) 713-8080 or fill out our online form.

What Is an Executor vs. an Administrator?

In New York, when someone passes away (sometimes called a decedent) and leaves behind an estate, the matter of managing their assets and liabilities, paying off creditors, and distributing what’s left to the beneficiaries is not handled by the court directly. Instead, it is up to an executor or an administrator to oversee this process.

An Executor is a person or entity that a decedent names in their last will and testament.  It may be an individual, a trust company, or a bank.. Multiple executors can be appointed simultaneously and work together to administer the estate. 

When a person dies without a will (dying intestate) or if the person’s will did not declare an executor, the court will appoint an administrator to take over the role of managing the process of estate. New York law lists the order in which different relatives have priority to serve as administrator of an estate.

Executors and administrators are responsible for gathering and creating an inventory of the property a decedent left behind, paying off any taxes or other bills due, receiving and validating any claims from creditors, and distributing any remaining assets to the beneficiaries. 

What is the process of appointing an executor or administrator?

In order to be appointed, the nominated executor or the proposed administrator often hires an attorney to guide and advise them. First, a petition must be prepared that lays out the information about the decedent. This petition must list anyone who would be affected by the proceeding, such as the heirs or distributees of the decedent. These groups can include people who are going to inherit under the will, people who would have inherited if not for the will, and people who would have inherited under an older version of the will. There are also additional documents and affidavits that must be prepared and filed with the Surrogate’s Court.

Certain classes of people must either sign a Waiver and Consent if they do not object to the appointment of the nominated executor or proposed administrator. After notice has been issued to those entitled to inherit, the Surrogate’s Court will hear any complaints or contests to the appointment of the potential administrator or executor. If there are no objections, the heirs or distributees would have to submit a waiver indicating their consent to the appointment of the executor or administrator.

Executors are issued Letters Testamentary to indicate their authority while administrators receive Letters of Administration. The court can also issue official documents to the executor or administrator of an estate to help them in mustering the assets of the decedent.

Estate executors and administrators are entitled to be compensated for their work, the amount of which depends on the size of the estate. This is called a commission and is calculated based on a formula. However, some executors choose to forgo commissions, especially if they are a close friend or family member of the decedent. Banks or trust companies may actively seek compensation and may reject the role of executor if the size of the estate does not meet their requirements.

An executor needs to follow the wishes of the decedent as written in the will and the administrator must manage the estate according to New York’s intestacy laws. Both executors and administrators have a fiduciary duty to perform their roles properly. They are legally required to put the best interests of the estate over their own or risk having a complaint filed against them in the Surrogate’s Court. 

It’s important to remember that while executors and administrators can perform the same function, there are some key differences between the two.

An administrator is usually appointed through a more complicated process. However, if the estate is valued at less than $50,000, the Surrogate’s Court may approve a simplified Voluntary Administration process. If the next of kin of the decedent cannot be established or is too distant, the Public Administrator of the relevant county will oversee the distribution of the estate.

In cases where the next of kin is interested in acting as administrator, they would need to provide the Surrogate’s Court with a Kinship Affidavit, also called an Affidavit of Heirship, determining their relationship with the decedent. They must also submit additional documentation to show their eligibility to be the estate’s administrator.

Being the executor or administrator of an estate is a significant responsibility. Even though an executor has been named in a person’s will they cannot be coerced into taking on the duty. The probate process can take months, even years. The management of the estate is also subject to additional scrutiny from the Surrogate’s Court which can make the process daunting.

New York State Executor Requirements

In New York State, an executor is a vital role assigned in a will to administer a decedent’s estate. The executor is tasked with implementing the will’s provisions, including collecting assets, paying debts and taxes, overseeing estate assets, and distributing remaining assets according to the will.

To serve as an executor in New York, one must meet several requirements. The person must be at least 18 years old, of sound mind, and have no felony record. Unlike many states, New York does permit out-of-state executors. However, New York judges hold the power to reject an executor request in a will for various reasons, including inappropriate behavior or inadequate language skills.

Executor compensation in New York is determined by the state and is equivalent to a percentage of the estate’s value. The commission structure for each executor is tiered, starting at 5% on the first $100,000 of the estate, then decreasing as the value of the estate increases.

In some instances, executors and administrators are required to purchase an executor bond in New York. This bond serves as a guarantee of the executor’s fiduciary responsibilities. Hence, when choosing an executor, consider factors like trustworthiness, responsibility, organizational skills, and diligence, as well as potential conflicts of interest among beneficiaries or between executors. The chosen executor should be capable of considering the estate’s overall interest.

Checks and Balances

Despite the fiduciary obligations executors and administrators have to the heirs and to the estate, there are still instances where mismanagement happens. To prevent this, the Surrogate’s Court can restrict the authority of administrators and executors when collecting or selling off assets and property.

Even if a will explicitly states that an executor does not have to pay a bond to act in their responsibility, the court can still impose the bond requirement if it judges that it is necessary. While a bond can be optional for executors, an administrator is usually required to submit a bond to act as insurance in case the administrator engages in ruinous activities that jeopardize the estate and to cover potential losses.

The Surrogate’s Court also hears any contests to the appointment of an executor or administrator. 

Whether you have been nominated as the executor or are planning to apply as the administrator for an estate, getting the help of an experienced New York probate attorney is beneficial. 

A skilled attorney can assist you in performing your duties, help you understand New York’s probate law, and keep updated with the legal processes involving the management of the decedent’s estate. 

Our team of estate planning attorneys at New York Legacy Lawyers, led by top-rated New York probate attorney Yana Feldman, has provided quality legal assistance to individuals maneuvering the probate process. We can assist you through your duties and responsibilities and help you facilitate the probate process as smoothly as possible. We can also represent and defend your rights from potential legal challenges. 

Schedule a consultation today with experienced New York probate attorney Yana Feldman. Contact New York Legacy Lawyers today at (718) 713-8080.

via New York Legacy Lawyers by Yana Feldman and Associates yanafeldmanlaw.com/executor...