In New York a personal representative is a person who has received “letters” to administer the estate of a decedent. EPTL § 1-2.13. They are a fiduciary and as such are required by law to do their job with the highest level of care and integrity. The terms “executor” and “estate administrator” are also used to describe the role of personal representative. If the person was named in the decedent’s will, then the person is called an “executor.” If they were not named in the decedent’s will, the person is often referred to as an “estate administrator.” Regardless of whether they were named in the decedent’s will or not, their responsibilities are essentially the same.
Personal Representative Appointment in New York
In New York, the Surrogate’s Court serves as the probate court. SCPA § 201. The person wishing to serve as personal representative must petition the Surrogate’s Court in the county where the decedent resided at the time of their death. For example, if the decedent lived in Bayshore, the petition would need to be filed at a Surrogate’s Court location in Suffolk County.
The court will review the petition and if it determines that the person is eligible to serve in the role, the court will approve the petition and issue them a document called, “letters.” Note that even if the person is named in the will, they still must be qualified, and the court must approve the appointment. Those ineligible for appointment include minors, incompetents, non-domiciliary aliens, and those who do not possess the qualifications required of a fiduciary due to substance abuse, dishonesty, improvidence, want of understanding, or because they are otherwise unfit for the execution of the office. SCPA § 707
Along with the petition, the petitioner must also file the original will, if any, and the death certificate. A filing fee is required and they may have to post a bond.
Duties and Responsibilities of a New York Personal Representative
Under New York law the personal representative has specific tasks to complete as follows:
Notice to creditors. Creditors must be notified that a decedent’s estate has been opened and is in the process of being settled. This is done by publication as well as by mail. Claims must be filed within 7 months from the date that the Surrogate’s Court appoints the personal representative. SCPA § 1802
Inventory estate assets. The personal representative is required to make a list of each asset in the estate, along with the value of each. The personal representative must file the inventory with the Surrogate’s Court. Failure to do so may result in the Surrogate’s Court revoking their letters and disallowing commissions. Uniform Rules § 207.20
Pay debts. Once the period for filing claims has ended, the personal representative can pay claims determined to be valid. The personal representative is not liable for claims that are filed after the 7-month time frame. In other words, if the personal representative distributes estate assets after the claims deadline, they are not personally responsible if there are no longer assets in the estate to pay claims that are filed after the deadline. The personal representative would be personally liable if they distribute assets prior to the end of the claims period and, as a result, there are not sufficient assets in the estate to pay valid, timely filed claims.
Distribute assets. Asses can be distributed by the personal representative, but only after debts and expenses have been paid. The personal representative must obtain permission from the Surrogate’s Court to distribute assets. The decedent’s will directs how assets are to be distributed. Otherwise, the personal representative must follow New York’s law of intestate succession.
Personal Representative Compensation in New York
The personal representative receives payment for their work either based on a scheme stated in the will or in the form of a statutory commission. According to SCPA § 2307 the amount of the commission is based on the value of the assets in the estate subject to administration as follows:
- For receiving and paying out all sums of money not exceeding $100,000 at the rate of 5%
- For receiving and paying out any additional sums not exceeding $200,000 at the rate of 4%
- For receiving and paying out any additional sums not exceeding $700,000 at the rate of 3%
- For receiving and paying out any additional sums not exceeding $4,000,000 at the rate of 2½%
- For receiving and paying out all sums above $5,000,000 at the rate of 2%