To be eligible to be an executor in New York, you must be 18 years old, of sound mind, with no felony record.
Unlike many states, New York does allow out-of-state executors.
However, New York judges can reject an executor request in your loved one’s will, for anything from behavior to language skills.
Executor compensation is set by the state in New York, equal to a certain portion of an estate‘s value.
In most cases, executors and administrators in New York are required to purchase an executor bond as a guarantee of your fiduciary responsibilities.
If you’ve been trusted with the role of executor in New York, it is important to understand state regulations about who is eligible, what your responsibilities are, and what your financial obligations will be.
As in other states, executors in New York must be at least 18 years of age and be of sound mind, with no felony record—but in New York probate judges have additional latitude if they choose to reject a proposed executor.
For example, the probate court can reject any executor for "substance abuse, dishonesty, improvidence, a want of understanding," or if they exhibit other behavior to which the court objects. If the executor is unable to write and/or read in English, this can also make them ineligible to serve as an executor according to the court.
If you have been chosen to be an executor for a loved one’s estate in New York, there are a few questions that have likely come to mind—and many issues that are helpful to think through before you begin.
Yes, executors who live outside of New York are permitted. However, if your loved one passed away without choosing an executor and designating them in their will, a judge will not appoint an out-of-state executor. Nor will they appoint someone who isn’t a U.S. resident unless a co-executor exists.
If the chosen executor happens to live out-of-state there are no restrictions, although it’s likely to be a trying process to get everything in order from a distance. It is highly advisable to hire a local estate attorney who can deal with unexpected issues and make the process run smoother.
One last note: If the chosen executor happens to be a non-U.S. citizen, then they must reside in New York in order for the judge to approve them.
Before you can even start the process of executor tasks, you must obtain letters testamentary. This court-issued document—obtained through the Surrogate Court in the county where your loved one lived—gives the executor the power to represent the estate and act on its behalf legally and financially.
In order to receive letters testamentary, you must submit a petition for probate with the Surrogate Court in your loved one’s county.
Typically you will need to submit the original will, original death certificate, contact information of all the next of kin (even those who are not listed in the will), as well as waivers that have been signed by everyone. You’ll also need to pay a filing fee, which can range from $215 to $1,250, depending on the size of the estate.
While serving as executor is usually a responsibility you do on behalf of your family, executors are often paid for their time because of the heavy workload that is typically required. In New York, the size of the fee is determined by state law, which ties executor compensation to the estate’s value.
For example, an executor can expect 5% on the first $100,000, 4% on the next $200,000, and 3% on the next $700,000. The percentage decreases as the estate’s worth increases and caps out at 2% on anything above $5 million.
The commission is based solely on the estate and doesn’t include non-probate assets such as jointly owned property or accounts, life insurance policies, and property or accounts with specifically named beneficiaries. However large or small the commission, the IRS considers it income and a tax will have to be paid on it.
In New York there are two types of probate bonds: an executor bond for those who were named the executor in a will, and the administrator bond, for those who were appointed by the court because no one was named an executor or there was no will.
In both cases, probate bonds may be required to make sure the executor or administrator not only adhere to the legalities involved with their tasks, but to protect both the executor and beneficiaries. If there is an issue between the heirs from the beginning in regards to the executor, a court might require a bond.
Executor bonds in New York are usually set at 0.5% of each $100,000 of estate value. So, the cost varies depending on how large the estate.
If you’d prefer to avoid paying for an executor bond, in rare cases it is possible. For instance, If the will states that the bond is to be waived or if all the heirs sign a waiver agreeing that the bond is unnecessary, you may be able to skip being bonded.
When it comes to co-executors in New York, each one is equal to the other and neither one has any greater power. The point of co-executors is to work as a team, and as a team they share the same duties and responsibilities.
Should one co-executor make a choice or do something not on the up and up, both executors are held liable.
If issues continue to arise between the co-executors and it becomes impossible to work together, things can get messy including lawsuits or going to court where a judge will decide that either one of the co-executors will now be the sole executor, or someone else will be a better fit for the job.
Because being an executor can be extremely trying, especially during such a difficult emotional time, sometimes the person who’s been chosen would rather opt out. It takes a lot of time, effort, and responsibility to be an executor and some people, as much as they want to do right by their loved one, simply can’t handle it.
If this is the case, you can file a petition with the court asking permission to resign from the position. When doing so, you must prove a reason as to why you can’t take on the duties of executor.
Although there are many reasons why someone would want to decline being an executor and there’s a good chance that a judge may agree with you, there may also be a case where your petition is denied. So, if you really do not want to be an executor, you want to have a compelling reason as to why you’re not a suitable choice ●
Probate is often a long and complex process, but it is also completely manageable if you stay organized and follow the instructions of the court. It’s definitely still a good idea to avoid the full probate process, if you can. We’ll walk you through whichever scenario applies to your loved one’s estate.