Allen, TX asked in Estate Planning, Family Law and Elder Law for New York

Q: Is there a time limit that a will should be settled by an appointed executor?

1 Lawyer Answer
Marco Caviglia
Marco Caviglia
  • Lagrangeville, NY
  • Licensed in New York

A: An executor is a fiduciary, which means that s/he has personal responsibility and liability for all assets and liabilities of the estate. However, the executor has no powers until obtaining letters testamentary or preliminary letters testamentary from the Surrogate's Court as a result of filing for probate. However, short of perhaps addressing funeral expenses, until such letters are granted there is no power. Now, what if the named executor doesn't file? While there is a moral duty, there is no legal duty for the executor to proceed with probate. But there is no reason for a named executor to remain so, as s/he may renounce that and the alternate named executor would proceed, and if none, then the Court, upon application, would decide. If the named executor won't renounce and yet, the executor is dragging his or her feet unreasonably, s/he can be circumvented. Many people can file for probate of the estate besides the executor: a legatee, devisee, fiduciary, or guardian; a creditor of the decedent may file. In fact, any "interested person" seen by the court as such may proceed. And there is no need to wait for the named executor to act, as there is no priority in law that the executor has preference to start the proceeding. So, the answer to your question is: until someone gets tired of waiting and worrying the estate's assets are at risk.

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