If the numbers do not add up, the executor may be found personally responsible for any shortfall. The court can “surcharge” the executor for the difference.

Under New York law, when a person dies leaving a spouse, or he or she dies without a spouse but leaves children under 21, specific assets are deemed to pass to those family members outside of the decedent’s estate, without an executor or administrator being appointed to manage those assets. The law was enacted to protect and provide for the decedent’s immediate family during a difficult time. The specified assets pass to the survivors immediately on death avoiding the delays inherent in a probate or intestate administration proceeding. These …

In New York, the heirs can force the executor to account by filing a Petition. If they satisfy the judge, an order to account is issued.

The executor should always obtain a release of liability from the heirs. The heirs, though, will often not wish to release the executor unless the executor can “account” for all the assets of the estate and explain all the expense incurred. To satisfy the heirs, the executor will need to provide an “accounting” of the assets and expenses.

An executor’s accounting is the report of the executor’s financial actions from the date the executor began serving until the end. It shows what was collected, what happened to those assets, any gain or losses on those assets and, in the Schedule of Distributions, how the executor plans to distribute the assets to the beneficiaries. In New York, these accountings can either be informal accountings or formal accountings.

There will not be any inheritance to the heirs or beneficiaries, who receive assets only if all debts are paid. New York law has a statutory priority of claims, in which some claims (such as funeral expenses) come ahead of others. New York law allows the creditors to reach assets of the decedent which were placed in certain types of trusts (e.g., a “living trust”), and requires those trustees to use trust assets if necessary for estate expenses and claims.

Under New York law, an election notice must be filed in Surrogate’s Ct within six months from the issuance of letters testamentary or letters of administration, but not later than two years after the decedent’s date of death. Written notice must be served by mail upon decedent’s personal representative.

In New York, a surviving spouse cannot be disinherited. A surviving spouse is entitled to at least $50,000 or one-third of the decedent spouse’s net estate, whichever is greater. The surviving spouse has a right of election even if the decedent has no Will. The purpose of this rule is to give effect to the testamentary substitutes. Otherwise, a spouse could make gifts with retained power to revoke and invade, and then die intestate, leaving his spouse with a right of election in an estate of zero dollars.

Only a person with “standing” can contest a Will. Generally, these are the persons who would have inherited if the decedent died without a will, such as a child or spouse. The only other person that can contest a Will is a beneficiary in a prior Will. 

A photocopy of a Last Will and Testament may be offered for probate. The Surrogate’s Court Procedure Act requires that the petitioner meet the following three burdens in order to have a photocopy of the Will admitted to probate: (i) the decedent did not revoke the Last Will and Testament being offered to the Court, (ii) the Last Will and Testament was properly executed in accordance with New York law, and (iii) at least two witnesses can demonstrate that the photocopy is complete.