The executor or personal representative is required by common and
statute law in New York to perform certain duties, including the
notification of any heirs, legatees, or beneficiaries of any interest
that they might have in the estate. Failure to disburse bequests
within seven months of the proving of the will can make the executor
liable to civil action. If any breach of fiduciary trust occurred,
criminal proceedings may be possible. The executor must file papers
and accounts to close the estate.
Probate records can be examined in the courthouse of the county where
probate was opened, usually the county where the decedent had his or
her principal place of residence.
Even if the personal representative has died, an action against his or
her personal representative as executor of the personal
representative's estate can be taken for recovery.
Life Advice pamphlet about Being An Executor
http://www.pueblo.gsa.gov/cic_text/money/executor/executor.htm
"The Executor's Checklist
Settling an estate, even a simple one, involves plenty
of loose ends and details. The following list will give
you an idea of the many things you may need to do as
executor. Use it as a guide, adding or deleting items
as needed.
* Locate the will
* Obtain a lawyer, if necessary
* Apply to appear before the probate court
* Notify beneficiaries named in the will
* Arrange for publication of notice to creditors and mail a notice to
each known creditor
* Send notices of the person's death to the post office, utilities,
banks and credit card companies
* Inventory all assets and have them appraised, if necessary
* Collect debts owed to the estate
* Check with deceased's employer for unpaid salary, insurance and
other employee benefits
* File for Social Security, civil service or veteran benefits
* File for life insurance and other benefits
* File city, state and/or federal tax returns
* File state death and federal estate tax returns
* Pay valid claims against the estate
* Distribute assets and obtain receipts from beneficiaries
* File papers to finalize the estate"
Consolidated Laws
Estates, Powers & Trusts
http://assembly.state.ny.us/leg/?cl=38
Estates, Powers & Trusts
http://assembly.state.ny.us/leg/?cl=38&a=1
" Chapter 952
AN ACT in relation to estates, powers and trusts, constituting
chapter 17-b of the consolidated laws
Became a law August 2, 1966, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.
The People of the State of New York, represented in Senate and
Assembly, do enact as follows:
ESTATES, POWERS AND TRUSTS LAW
Article 1. General provisions. (SS 1-1.1--1-2.20)
2. Rules governing dispositions subject to this law.
(SS 2-1.1--2-1.14)
3. Substantive law of wills. (SS 3-1.1--3-5.1)
4. Descent and distribution of an intestate estate.
(SS 4-1.1--4-1.6)
5. Family rights. (SS 5-1.1--5-4.6)
6. Classification, creation, definition of, and rules
governing estates in property. (SS 6-1.1--6-6.7)
7. Trusts. (SS 7-1.1--7-6.26)
8. Charitable trusts. (SS 8-1.1--8-1.8)
9. Perpetuities and accumulations. (SS 9-1.1--9-2.3)
10. Powers. (SS 10-1.1--10-10.8)
11 Fiduciaries: Powers, duties and limitations; actions
by or against in representative or individual capacities. (SS
11-1.1--11-4.7)
11-A. Uniform principal and income act. (SS
11-A-1.1--11-A-6.4)
12. Actions by creditors and other persons against
distributees and testamentary beneficiaries. (SS 12-1.1--12-2.5)
13. Other provisions affecting estates. (SS 13-1.1--13-3.6)
14. Repealer; Derivation and Distribution Tables;
Effective Date. (SS 14-1.1--14-3.1)"
Chapter 17-B
http://assembly.state.ny.us/leg/?cl=38&a=50
"PART 1. FIDUCIARIES: POWERS, DUTIES AND LIMITATIONS
"S 11-1.1 Fiduciaries` powers
(a) As used in this section, unless the context or subject matter
otherwise requires,
(1) the term "estate" means the estate of a decedent;
(2) the term "trust" means any express trust of property, created by
a will, deed or other instrument, whereby there is imposed upon a
trustee the duty to administer property for the benefit of a named or
otherwise described income or principal beneficiary, or both. A trust
shall not include trusts for the benefit of creditors, resulting or
constructive trusts, business trusts where certificates of beneficial
interest are issued to the beneficiary, investment trusts, voting
trusts, security instruments such as deeds of trust and mortgages,
trusts created by the judgment or decree of a court, liquidation or
reorganization trusts, trusts for the sole purpose of paying
dividends, interest, interest coupons, salaries, wages, pensions or
profits, instruments wherein persons are mere nominees for others, or
trusts created in deposits in any banking institution or savings and
loan institution;
(3) the term "fiduciary" means administrators, executors, preliminary
executors, administrators d.b.n., administrators c.t.a.d.b.n.,
administrators c.t.a., ancillary executors, ancillary administrators,
ancillary administrators c.t.a and trustees of express trusts,
including a corporate as well as a natural person acting as fiduciary,
and a successor or substitute fiduciary, whether designated in a trust
instrument or otherwise."
[...]
"Sec. 11-1.3 Power and duty of executor before probate An executor
named in a will has no power to dispose of any part of the estate of
the testator before letters testamentary or preliminary letters
testamentary are granted, except to pay reasonable funeral expenses,
nor to interfere with such estate in any manner other than to take
such action as is necessary to preserve it."
[...]
"Sec. 11-1.5 Payment of testamentary dispositions or distributive
shares
(a) Subject to his duty to retain sufficient assets to pay
administration and reasonable funeral expenses, debts of the decedent
and all taxes for which the estate is liable, a personal
representative may, but, except as directed by will or court decree or
order, shall not be required to, pay any testamentary disposition or
distributive share before the completion of the publication of notice
to creditors or, if no such notice is published, before the expiration
of seven months from the time letters testamentary or of
administration are granted.
(b) Whenever a disposition is directed by will to be paid in advance
of such publication of notice or the expiration of such seven month
period, the personal representative may require a bond, conditioned as
follows:
(1) That if debts of the decedent appear, and the assets of the estate
are insufficient to pay them or to pay other testamentary dispositions
entitled, under 13-1.3, to payment equally with or prior to that of
the disposition paid in advance, the beneficiary to whom advance
payment was made will refund it, or the value thereof, together with
interest thereon and any costs incurred by reason of such payment, or
such ratable portion thereof, as is necessary to pay such debts or to
satisfy the rights, if any, of other beneficiaries under the will.
(2) That if the will, under which the disposition was paid, is denied
probate, on appeal or otherwise, such beneficiary will refund the
entire advance payment, together with interest and costs as described
in subparagraph (1), to the personal representative entitled thereto.
(c) If, after the publication of notice to creditors or the expiration
of seven months from the time letters are granted, as the case may be,
the personal representative refuses upon demand to pay a disposition
or distributive share, the person entitled thereto may maintain an
appropriate action or proceeding against such representative. But, for
the purpose of computing the time limited for its commencement, the
cause of action does not accrue until the personal representative`s
account is judicially settled.
(d) In any action or proceeding to compel payment of a disposition or
distributive share, the interest thereon, if any, shall, in the case
of a disposition, be at the rate fixed in the will or, if none is so
fixed, in any case at the rate of six percent per annum commencing
seven months from the time letters, including preliminary or temporary
letters, are granted.
(e) Upon application by any legatees of the general dispositions on
notice to the fiduciary, the court, where the delay in payment was
unreasonable, may fix interest in the amount set forth in section five
thousand four of the civil practice law and rules."
[...]
"Sec. 11-1.7 Limitations on powers and immunities of executors and
testamentary trustees
(a) The attempted grant to an executor or testamentary trustee, or the
successor of either, of any of the following enumerated powers or
immunities is contrary to public policy:
(1) The exoneration of such fiduciary from liability for failure to
exercise reasonable care, diligence and prudence.
(2) The power to make a binding and conclusive fixation of the value
of any asset for purposes of distribution, allocation or otherwise.
(b) The attempted grant in any will of any power or immunity in
contravention of the terms of this section shall be void but shall not
be deemed to render such will invalid as a whole, and the remaining
terms of the will shall, so far as possible, remain effective.
(c) Any person interested in an estate or testamentary trust may
contest the validity of any purported grant of any power of immunity
within the purview of this section without diminishing or affecting
adversely his interest in the estate or trust, any provision in any
will to the contrary notwithstanding."
[...]
PART 3. ACTIONS BY OR AGAINST PERSONAL REPRESENTATIVES
http://assembly.state.ny.us/leg/?cl=38&a=52
" Sec. 11-3.1 Actions
Any action, other than an action for injury to person or property, may
be maintained by and against a personal representative in all
cases and in such manner as such action might have been maintained by
or against his decedent.
Sec. 11-3.2 Action for injury to person or property survives despite
death of person in whose favor or against whom cause of action existed
(a) Action against personal representative for injury to person or
property.
(1) No cause of action for injury to person or property is lost
because of the death of the person liable for the injury. For any
injury, an action may be brought or continued against the personal
representative of the decedent, but punitive damages shall not be
awarded nor penalties adjudged in any such action brought to recover
damages for personal injury. This section extends to a cause of action
for wrongfully causing death and an action therefor may be brought or
continued against the personal representative of the person liable
therefor.
(2) Where death or an injury to person or property, resulting from a
wrongful act, neglect or default, occurs simultaneously with or after
the death of a person who would have been liable therefor if his death
had not occurred simultaneously with such death or injury or between
the wrongful act, neglect or default and the resulting death or
injury, an action to recover damages for such death or injury may be
maintained against the personal representative of such person.
(b) Action by personal representative for injury to person or
property.
No cause of action for injury to person or property is lost because of
the death of the person in whose favor the cause of action existed.
For any injury an action may be brought or continued by the personal
representative of the decedent, but punitive damages shall not be
awarded nor penalties adjudged in any such action brought to recover
damages for personal injury where the death occurs on or before August
thirty-first, nineteen hundred eighty-two. On the trial of any such
action accruing before September first, nineteen hundred seventy-five,
which is joined with an action for causing death, the contributory
negligence of the decedent is a defense, to be pleaded and proved by
the defendant. No cause of action for damages caused by an injury to
a third person is lost because of the death of the third person."
[...]
" Sec. 11-3.4 Action by representative of representative
Except as otherwise prescribed by law, a personal representative of a
personal representative has no authority to commence or maintain any
action or proceeding relating to the estate, effects or rights of the
decedent of the first representative, or to take any charge or control
thereof, as such representative."
[...]
PART 4. PROCEDURAL ASPECTS OF ACTIONS BY OR AGAINST PERSONAL
REPRESENTATIVES
http://assembly.state.ny.us/leg/?cl=38&a=53
" Sec. 11-4.1 How to sue or be sued
Actions or proceedings brought by or against a personal representative
must be brought by or against him in his representative capacity.
Sec. 11-4.2 When personal and representative causes of action may be
joined
Actions or proceedings brought against a personal representative
personally and in his representative capacity may be joined. In such
case a judgment for the plaintiff must clearly indicate whether it is
awarded against the defendant personally or in his representative
capacity.
Sec. 11-4.3 Separate dockets and executions
In a case specified in 11-4.2 or where costs to be collected out of
the individual property of a personal representative are awarded in an
action or proceeding by or against him in his representative capacity,
so much of the judgment as awards a sum of money against him
personally may be separately docketed and a separate execution may be
issued thereupon, as if the judgment contained no award against him in
his representative capacity.
Sec. 11-4.4 Commencement of action against personal representatives;
rule when some of representatives not served
Where an action or proceeding is commenced against two or more
personal representatives in their representative capacities,
jurisdiction of all is obtained by service of process upon any one of
them and any judgment recovered may be entered and execution issued
thereon against all of them, in their representative capacities, as if
all had been served.
Sec. 11-4.5 Want of assets not to be pleaded by personal
representative
In an action or proceeding against a personal representative, in his
representative capacity, in which the complaint demands judgment for a
sum of money, the non-existence or insufficiency of assets may not be
pleaded and the plaintiff`s right of recovery is not affected thereby.
S 11-4.6 Leave to issue execution against personal representative; how
procured; order and contents thereof; security before order granted;
execution on judgment recovered by predecessor representative
(a) Leave to issue execution against personal representative.
Except as provided in this paragraph, an execution shall not be issued
upon a judgment for a sum of money against a personal representative,
in his representative capacity, until an order permitting it to be
issued has been made by the surrogate`s court from which letters were
issued. Such an order must specify the sum to be collected, and the
execution must be endorsed with a direction to collect that sum. If a
judgment is rendered jointly against a personal representative in his
representative capacity and one or more other parties, execution may
be issued thereon, without such order, against the other party if a
direction is endorsed thereon not to levy against any property which
the personal represen- tative is or may be entitled to possess in his
representative capacity.
(b) How leave procured; order; contents thereof.
At least six days notice of the application for an order specified in
paragraph (a) must be personally served upon the personal represen-
tative, unless it appears that service cannot be so made with due
dili- gence, in which case notice must be given to such persons and in
such manner as the surrogate directs by an order to show cause why the
appli- cation should not be granted. Where it appears that the assets,
after payment of all sums chargeable against them for expenses and for
claims entitled to priority as against the plaintiff, are not, or will
not be sufficient to pay all the debts, testamentary dispositions or
other claims of the class to which the plaintiff`s claim belongs, the
sum directed to be collected by the execution shall not exceed the
plaintiff`s just proportion of the assets. In that case, one or more
orders may be subsequently made in like manner, and one or more
executions may be subsequently issued, whenever it appears that the
sum directed to be collected by the first and subsequent execution is
less than the plaintiff`s just proportion.
(c) Security before grant of order.
Where a judgment has been rendered against a personal representative
in his representative capacity for a testamentary disposition or
distributive share, the surrogate, before granting an order permitting
an execution to be issued thereupon, may, and in a proper case must,
require the applicant to file in his office a bond to the defendant,
in such a sum and with such sureties as the surrogate directs, to the
effect that if, after collection of any sum of money by virtue of the
execution, the remaining assets are not sufficient to pay all sums for
which the defendant is chargeable for expenses, claims entitled to
priority as against the applicant, and the other testamentary disposi-
tions or distributive shares of the class to which the applicant`s
claim belongs, the plaintiff will refund to the defendant the sum so
collected, or such ratable part thereof as is necessary to make up the
deficiency.
(d) Execution on former judgment.
An execution may be issued in the name of a personal representative,
in his representative capacity, upon a judgment recovered by any
person who preceded him in the administration of the same estate, in
any case where it might have been issued in favor of the original
plaintiff, and without a substitution.
S 11-4.7 Liability of the personal representative for claims arising
out of the administration of the estate
(a) Unless otherwise provided in the contract, a personal
representative is not individually liable on a contract properly
entered into in his fiduciary capacity in the course of administration
of the estate unless he fails to reveal his representative capacity
and identify the estate or trust in the contract.
(b) A personal representative is individually liable for obligations
arising from ownership or control of the estate or for torts committed
in the course of administration of the estate only if he failed to
exercise reasonable care, diligence and prudence.
(c) Claims based on contracts entered into by a personal
representative in his fiduciary capacity, on obligations arising from
ownership or control of the estate or on torts committed in the course
of estate administration may be asserted against the estate by
proceeding against the personal representative in his fiduciary
capacity, whether or not the personal representative is individually
liable therefor.
(d) In any case where liability is found against the estate as the
result of an action or proceeding brought under subdivision (c),
issues of liability as between the estate and the personal
representative shall be determined in an accounting proceeding brought
pursuant to section twenty-two hundred five of the surrogate`s court
procedure act."
COURT DECISIONS
Search the decisions of the New York Court of Appeals
http://www4.law.cornell.edu/cgi-bin/empower?DB=NYCTAP&TOPDOC=0&QUERY00=estate+and+(trust+or+gift)+not+liibulletin&PROP00=t=b
LII:Law about...Estate Planning
http://www.law.cornell.edu/topics/estate_planning.html
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