Many people mistakenly believe that being named as executor in a will is all it takes to actually be a decedent's executor. Tim explains why this is incorrect.
Podcast Transcription:
WRVO Producer Mark Lavonier:
This podcast is part of the series Estate Planning Pro Tips, hosted by attorney Tim Crisafulli of Crisafulli Estate Planning and Elder Law P.C., an estate planning, probate and elder law firm serving clients throughout central New York. A former school teacher, Tim explains complex legal subjects in an easy-to-understand way. The commentaries focus on the central aspects of estate planning, such as wills, trusts, asset protection, long-term care, and probate. And now here's Tim.
Tim Crisafulli:
Many people mistakenly believe that being named as executor in a will is all it takes to actually be a decedent's executor. This is not correct. A will merely identifies a nominated executor, that is, the person who the decedent hopes will ultimately serve as executor.
Actually becoming an executor involves a legal process which may culminate with the appointment of the nominated executor as the actual executor. Sometimes the nominated executor never actually becomes the actual executor. Here's how it works.
When a person with a will passes away, it falls upon the nominated executor, the person appointed in the will, to commence the probate process. This involves a series of steps through which the court determines whether the will is valid, and who will serve as executor.
First, the nominated executor files a petition for probate, generally drafted by an attorney.
Next, all of the decedent's next of kin, as defined under New York law, must have the opportunity to sign off on the will and agree to the nominated executor's appointment. If any will not, they must have the opportunity to object. The opportunity to object comes in the form of being served generally by a process server with a citation, making that individual aware of a court date where the process of objecting to the will and/or to the appointment of the executor can begin.
Sometimes it is difficult to find and serve each next of kin, which may necessitate extensive searches, a resort to alternative methods to serve papers, and even publishing a legal notice searching for long-lost family members. Other notice requirements may also apply for making beneficiaries who are not next of kin, charities, and even the New York Attorney General aware of the probate proceeding.
Ultimately, though, the court formally appoints someone as executor by issuing a document called Letters Testamentary. It is only upon the issuance of that document that an individual actually becomes the executor.
