The Executor takes an oath to “faithfully and honestly discharge the duties of Fiduciary.” The Executor can be called to task for failing to fulfill his or her duties by any beneficiary or the Court. The Court has the power to revoke the Executor’s powers, force the Executor to account for their action or inaction, sanction the Executor and even recommend prosecution. It is a serious responsibility that should be guided by a competent probate attorney.
- Collect, inventory and value assets
The Executor or attorney will contact financial institutions and request that the asset be retitled or sold and the funds transferred to an estate or investment account. The Executor has authority over personal property (e.g. brokerage accounts, bank accounts) anywhere in the world. If there is a house or land (real property) located outside of New York, this will be beyond the power of the Executor. A separate proceeding, called an ancillary proceeding, will be necessary in the state where the real property is located. Through estate planning, you may be able to avoid an ancillary proceeding by re-titling the real property.
- Protect and properly invest assets when appropriate
This may involve acts such as setting up security for a vacant house to avoid burglary or reinvesting money that was in a noninterest-bearing or poorly performing account.
- Sell assets when necessary
A house is usually sold unless the Will specifically directs otherwise.
- Pay debts
Creditors have seven months from the appointment of an Executor to file their claim with the Court. Not all claims presented are valid.The Executor must determine whether a claim is valid.
- Prepare a formal or informal accounting
The Executor presents a summary of their administration of the estate (the above items) and proposed distribution to all the interested parties. The beneficiaries are asked to release the fiduciary (i.e., Executor or Administrator) from liability for actions as reflected in the account. There are two ways in which an Executor can settle his account: formally (with judicial approval) or informally. In most cases, settlement is informal, by agreement with the beneficiaries. Such an agreement is often called a “Receipt and Release” agreement.