By Linda M. Toga, Esq.
The Facts: I am named executor in my brother’s will. He died recently and his assets include a bank account and a house. Someone told me that since I am the named executor, I can close the account and sell his house simply by presenting the will.
The Question: Is that true?
The Answer: Absolutely not! Although you are named in your brother’s will as the executor of his estate, the surrogate’s court in the county in which your brother resided at the time of his death must admit the will to probate and issue letters testamentary to you before you can take any action with respect to your brother’s assets.
In other words, you must establish to the court’s satisfaction that the will is valid before you are able to act as executor. You cannot assume the responsibilities of executor without the court’s explicit approval.
The complexity, cost and time involved in having a will admitted to probate will vary with the number of beneficiaries named in the will, as well as the number of heirs to the estate, the ease with which your attorney can locate the beneficiaries and heirs, how cooperative those people may be with the attorney in moving forward, the value of the estate and whether anyone contests the admission of the will to probate, among other factors.
While the probate process can be straightforward and relatively inexpensive, there are numerous issues that can arise in the probate process that are best handled by an experienced estate attorney. Some of the most common issues with probate are not being able to locate individuals who are entitled to notice and dealing with individuals who contest the validity of the will.
Fortunately, the percentage of cases where a will is contested and ultimately not admitted to probate is small but, if there are objections filed to the probate of a will, the process can drag on for quite some time, significantly increasing the expenses of the estate.
Assuming the probate process goes smoothly and your brother’s will is ultimately admitted to probate, you will be issued letters testamentary by the court. Only then will you be in a position to marshal your brother’s assets, pay any legitimate outstanding debts your brother may have had, and make distributions in accordance with the wishes set forth in your brother’s will.
Once you have located and distributed your brother’s assets, you will be required to file with the court an inventory of your brother’s assets and releases from the beneficiaries stating that they received the bequests to which they were entitled under the will.
Linda M. Toga provides personalized service and peace of mind to her clients in the areas of estate administration and estate planning, real estate, marital agreements and litigation from her East Setauket office.