New York Estate Law When the Executor Dies

by Dennis Masino
It's always a good idea to name an alternate executor in your will.

It's always a good idea to name an alternate executor in your will.

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New York, like all other states, recognizes a written will as the proper method for making your wishes known as to the distribution of your assets when you die. The executor is the person named in the will to see that the terms of the will are carried out. If an executor dies before she has completed her duties, the court must appoint a new executor.

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Designation

A person making a will, also referred to as the "testator," has the right to name anyone as the executor of his estate. Any person who is over 18 years of age and is a U.S. citizen without a felony conviction is eligible. No particular qualifications are required, other than being trusted to carry out the testator's wishes written in the will. Most attorneys and will preparation websites recommend naming of an alternate or successor executor in the event that the primary executor must be replaced.

Court Appointment

Upon the death of the maker of a will, the executor named in the will does not immediately have any authority to handle the affairs of the deceased individual. A person of interest, usually the executor named in the will, must submit the will and death certificate to the probate court. The executor-to-be should also file a Petition for Probate of Will and Appointment of Executor. After the court deems the will valid and approves the named executor, it officially appoints the executor by issuing Letters Testamentary, which empower the executor to act. The surrogate's court in the county where the deceased resided is the court having authority over wills and estates in New York.

Replacement of Executor

If a person named as executor dies before the maker of the will, the testator can add an amendment to the will, called a codicil, naming a new executor. If the executor dies while the will is in probate, the surrogate court will typically appoint the person named as the alternate executor in the will as the successor to the primary executor.

Estate Administrator

If the maker of the will did not name an alternate to the primary executor, or if the alternate is unable or declines to serve as executor, the court will appoint someone else, known as the estate administrator, in place of a deceased executor. Anyone who is a U.S. citizen over the age of 18 without a felony conviction and who would stand to inherit under New York law if the deceased had not left a will, is eligible for appointment as estate administrator.