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Nolfo McKenna – Probate in New York: Exposing the Myths Part 2 – Albany, NY

Probate Part 2 Serving as an Executor

What is involved if you are named as an Executor under a Last Will and Testament? An executor is considered a fiduciary under the law, and with that title comes specific responsibilities. An Executor must act in the best interest of the estate, and follow the decedent’s instructions as directed in the Last Will and Testament. My office gets involved when someone who has been named as an Executor under a Will is seeking to probate that Will. My office handles probate proceedings for estates in Albany NY, Clifton Park NY, Schenectady NY, Rensselaer NY, Saratoga NY, as well as Greene and Ulster County. Each county has its own Surrogate’s Court.

If someone passes away in Albany County, and they resided in Rensselaer County, but owned a condo in Saratoga County for track season, and a cabin on a lake in Ulster County for fishing, we would generally bring the probate proceeding in Rensselaer County, not Albany, Saratoga or Ulster County. If we attempted to bring the probate proceeding in Ulster County, the Surrogate’s Court in Ulster County would most likely reject our probate petition and advise us to file our probate petition in Rensselaer County. This is due to our laws regarding jurisdiction and venue for probate proceedings. What if the executor lives in Albany County? That is not a problem with most courts. Occasionally, a Surrogate’s Court will require a bond filed by the executor, but that is not common in most probate proceedings. My office has represented many executors who reside in another state, including Florida and California.  There may be some delays due to time spent mailing items back and forth, but with today’s technology, it is rarely a problem.

What if the named executor has passed away, is ill or is otherwise unable to act as executor in a probate proceeding? Most attorneys will suggest a client name a Successor Executor in the Will, and by submitting a form or a death certificate from the Primary Executor named in the will, the Successor Executor may serve as the Executor.

Can the Executor start their work immediately after the death of the decedent? The simple answer is no. The executor must be appointed by the appropriate Surrogate’s Court, in the appropriate county. In fact, I advise all Executors to wait until they are properly appointed. However, if there is a pressing matter, such as a property in Albany County that is expected to be sold before the Surrogate’s Court has an opportunity to probate the Will, then my office would petition the Surrogate’s Court for Temporary Letters Testamentary.

When the Will is submitted for probate, the Court will set a return date in Surrogate’s Court. It is at that time anyone who wishes to contest the validity of the Will appears in person, or by their attorney. If no one opposes the probate, and the Court finds no issues with the validity of the Will, the probate process will move forward, and the Court will issue the Executor Letters Testamentary. These letters allow the Executor to act on behalf of the Estate. The Executor may collect the assets of the estates, pay valid debts and distribute property.