Q: My friend told me that she wants to name me as executor in her Will. Is there anything I should know before I agree?
A: You should know that anyone can nominate you as executor of his or her Will, they do not have to notify the person they nominate, and they do not need your permission. There are many factors that determine whether acting as executor will be a smoothly paved road or a bumpy one. Keep in mind that you can resign if someone nominates you as his or her executor and you do not want to act.
One hurdle is possessing sufficient knowledge of a person’s family tree. In New York, when someone passes away with a Will, the executor is responsible for providing a copy of the Will to the deceased person’s “next of kin”– even if those family members are not inheriting. The family members can either sign a waiver which expresses their consent to the Will being admitted to probate, or the Court will provide a date where the family members can appear and file objections.
This can be especially tricky if someone dies with more remote next of kin such as cousins or first cousins once removed. Sometimes a genealogist will be hired to determine the deceased’s next of kin, or the court will require publication in a local newspaper if next of kin is unknown. This can be costly and cause significant delays in the court proceeding.
Sometimes the Court will require that an attorney be appointed on behalf of unknown next of kin or have the Public Administrator review the efforts made to locate and provide notice to all next of kin. The estate must pay for these additional fees and attorneys.
The process is very cumbersome if an executor has no access to funds when the deceased’s accounts can only be accessed with Letters Testamentary which are issued by the Court after the executor is officially appointed. Payment for the attorneys’ fees and genealogist’s fees may have to be paid upfront, and then reimbursed once there is access to estate funds.
Executor’s may take a commission, but it is based on the value of estate assets, not the time spent attending to the estate.
Additionally, you want to make sure that your friend provides you with access to the original Will as you will be required to file the original for probate.
Erin Cullen, Esq. is an associate attorney at Burner Prudenti Law, P.C. focusing her practice areas on Trusts and Estates. Melissa Doris, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Trusts and Estates, Estate Planning and Real Estate.. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.