In New York, a personal representative is the person the Surrogate’s Court appoints to settle a deceased person’s estate. If there is a will, that person is called the executor; if there is no will, the court appoints an administrator under the Surrogate’s Court Procedure Act (SCPA). Either way, the role carries the same core obligation: to collect the decedent’s assets, pay valid debts and taxes, and distribute what remains to the rightful beneficiaries or distributees, all while acting as a fiduciary in their best interest.
That last word, fiduciary, does most of the heavy lifting. It means you are not handling your own money. You are handling someone else’s, under the watch of a court, and you can be held personally liable if you do it carelessly. Below is a practical, statute-grounded walkthrough of what the job actually involves in New York, written from the perspective of attorneys who handle Brooklyn probate matters every week, including the messier ones that begin as guardianship cases and turn into estate administration.
Executor vs. Administrator: Two Names, One Fiduciary Role
The title you hold depends on whether the decedent left a valid will.
- Executor — nominated in the will and confirmed by the Surrogate’s Court through the probate process. The court issues letters testamentary as proof of authority.
- Administrator — appointed when there is no will (intestacy), or when the named executor cannot serve. The court issues letters of administration, and the order of who has priority to serve is set by SCPA 1001 (surviving spouse first, then children, then grandchildren, and so on).
People also use the umbrella term “personal representative” to cover both, and that is the language federal tax forms use. Whatever the label, the fiduciary duties are essentially identical. The executor follows the will’s instructions; the administrator follows New York’s intestacy rules in EPTL 4-1.1. Neither one gets to improvise.
A note on guardianship-to-probate transitions
Many Brooklyn estates do not start at death. They start years earlier, when a family member becomes incapacitated and an Article 81 guardian is appointed to manage their affairs. When that person dies, the guardian’s authority ends, and someone must step in to probate the will or administer the estate. The guardian must render a final account to the court, and the assets pass to the newly appointed personal representative. These handoffs are where mistakes happen, because everyone assumes the other person has it covered. If you are moving from a guardianship into an estate, treat it as a clean restart of fiduciary duty, not a continuation of the old authority.
The First Duty: Get Appointed and Secure the Assets
You have no legal power until the Surrogate’s Court grants you letters. Acting before that, signing a contract to sell the house, draining a bank account, is a common and costly error. The opening sequence usually looks like this:
- File the petition. For a will, that is a probate petition with the original will and death certificate. For intestacy, it is a petition for letters of administration. In Brooklyn, this is filed with the Kings County Surrogate’s Court.
- Give notice to interested parties. Probate requires that you serve a citation, or obtain signed waivers and consents, from every distributee, the people who would inherit if there were no will. Skipping someone invites a will contest later.
- Receive your letters. Once issued, letters testamentary or of administration are your credential. Banks, brokerages, and title companies will ask for a certified copy.
- Marshal the assets. Open an estate bank account, retitle accounts into the estate’s name, secure real property, change the locks if needed, and make a careful inventory of everything the decedent owned.
Small estates are an important exception. If the decedent left personal property worth $50,000 or less (not counting real estate that passes outside the estate), you may be able to use the simplified voluntary administration procedure under SCPA Article 13 instead of full probate or administration. It is faster and cheaper, and for modest Brooklyn estates it is often the right tool. An attorney can tell you in one conversation whether you qualify.
Core Fiduciary Duties Under New York Law
New York holds fiduciaries to demanding standards. The duties below are not suggestions; they are enforceable obligations, and a beneficiary can sue you for breaching any of them.
Duty of loyalty
You must put the estate’s interests ahead of your own. No self-dealing. You cannot buy estate property at a discount, lend yourself estate money, or steer business to yourself. Even a transaction that is technically fair can be voided if it was not fully disclosed and approved.
Duty of prudence
When the estate holds investments, you must manage them under the Prudent Investor Act (EPTL 11-2.3). That means diversifying, considering risk and return as a portfolio, and not leaving large sums sitting idle or, just as bad, gambling on a single speculative stock. If you are unsure, document that you sought professional advice.
Duty to account
You must keep meticulous records of every dollar in and every dollar out, with receipts. Beneficiaries are entitled to a full accounting, and the court can compel one. A clean accounting protects you; a sloppy one is how honest fiduciaries end up accused of theft.
Duty of impartiality
If there are multiple beneficiaries, you cannot favor one over another, including yourself if you happen to be a beneficiary too. This duty becomes pointed in blended families and in estates where one heir lived with the decedent and feels entitled to more.
Paying Debts, Taxes, and Claims, In the Right Order
Before anyone inherits a penny, the estate’s obligations come first. Distributing too early, then discovering an unpaid creditor or tax bill, can leave you personally on the hook.
- Identify and evaluate creditor claims. Not every bill is a valid claim. Part of your job is rejecting improper ones and paying legitimate ones, in the statutory order of priority (administration expenses and funeral costs are near the top).
- File final income tax returns for the decedent, plus a fiduciary income tax return for the estate if it earns income during administration.
- Address estate tax. New York imposes its own estate tax separate from the federal one, with its own filing thresholds, and it features a well-known “cliff” that can tax the entire estate, not just the excess, once you exceed the exemption by more than a small margin. The numbers change, so confirm the current threshold with counsel rather than relying on an old figure.
- Honor the spousal right of election. A surviving spouse in New York cannot be disinherited. Under EPTL 5-1.1-A, the spouse may elect to take the greater of $50,000 or one-third of the net estate, regardless of what the will says. A personal representative who ignores this creates serious exposure.
The interplay of creditors, taxes, and the elective share is one of the most common challenges families face during the probate process, and it is the single area where rushing causes the most damage.
What Falls Outside the Personal Representative’s Reach
A frequent surprise: you do not control everything the decedent touched. Several categories of assets pass independently of the estate, and you have no authority over them.
- Assets in a revocable living trust. Property the decedent transferred into a trust during life is managed by the trustee under the trust terms, not by you, and it avoids probate entirely.
- Beneficiary-designated accounts. Life insurance, IRAs, 401(k)s, and payable-on-death or transfer-on-death accounts go straight to the named beneficiary.
- Jointly owned property with right of survivorship. It passes automatically to the surviving owner.
Two other documents that often confuse families end at death rather than empowering you. A New York statutory durable power of attorney under General Obligations Law 5-1501, and a health care proxy, both terminate the moment the principal dies. The agent under those instruments has no authority over the estate. If you served as someone’s agent and now expect to handle their estate, you must still be appointed by the Surrogate’s Court as executor or administrator. Knowing what is in the probate estate versus what passes outside it is foundational; our overview of how probate works in Brooklyn walks through that distinction in plain terms.
Distribution and Closing the Estate
Once debts and taxes are settled and the waiting period for creditor claims has run, you distribute the remaining assets, by the will’s terms if there is one, or by EPTL 4-1.1 intestacy shares if there is not. Best practice is to obtain a signed receipt and release from each beneficiary, and for larger or contested estates, to seek a formal judicial accounting so the court signs off and discharges you from liability. Skipping the release to “keep things friendly” is exactly how a friendly family becomes a litigating one.
Getting Paid: Statutory Commissions
The role is real work, and New York compensates it. Executor and administrator commissions are set by statute (SCPA 2307) on a sliding percentage scale based on the value of assets you receive and pay out. You are entitled to that commission, but you must account for it properly, and a family member serving as executor sometimes chooses to waive it, particularly when they are also a primary beneficiary, to avoid the income tax that commissions carry.
When to Bring in an Attorney
You can administer a simple, uncontested estate yourself, and some people do. But certain warning signs mean you should not go it alone: a likely will contest, a missing or hostile distributee, real estate to sell, an estate near the New York estate tax cliff, a business interest to value, an estate that grew out of a contested guardianship, or beneficiaries who have already lawyered up. In those situations, an experienced probate attorney is not an expense so much as liability insurance for you personally.
Our firm guides Brooklyn families through every stage of this process, from the first petition to final distribution. If you would like a clear picture of your obligations before you act, Morgan Legal’s team handles NYC probate and estate administration daily, and their affiliated Florida office assists families with out-of-state ties through its Florida probate practice. To talk through your specific estate, or to make sure your own will and estate plan spare your family the hardest parts of this process, reach out for a consultation.
Frequently Asked Questions
What is the difference between an executor and an administrator in New York?
An executor is named in the decedent’s will and confirmed by the Surrogate’s Court, which issues letters testamentary. An administrator is appointed when there is no will, following the priority order in SCPA 1001, and receives letters of administration. Both are personal representatives with the same fiduciary duties; the executor follows the will, while the administrator follows New York’s intestacy rules under EPTL 4-1.1.
Can a personal representative be held personally liable in New York?
Yes. A personal representative is a fiduciary and can be held personally liable for breaching duties of loyalty, prudence, impartiality, or accounting, for distributing assets before paying valid debts and taxes, or for failing to honor the surviving spouse’s right of election under EPTL 5-1.1-A. Careful record-keeping and a formal accounting are the best protection.
How is a personal representative paid in New York?
Executors and administrators are entitled to statutory commissions under SCPA 2307, calculated on a sliding percentage scale based on the value of estate assets received and paid out. The commission is taxable income, so a family member who is also a beneficiary sometimes waives it to avoid that tax.
Does a power of attorney let me handle a person's estate after they die?
No. A New York statutory durable power of attorney under GOL 5-1501, and a health care proxy, both terminate at the moment of death. To manage the estate you must be appointed by the Surrogate’s Court as executor or administrator, regardless of what authority you held during the person’s lifetime.
What assets does a personal representative not control?
Assets that pass outside probate are not under the personal representative’s authority. These include property in a revocable living trust, accounts with named beneficiaries such as life insurance and IRAs, payable-on-death and transfer-on-death accounts, and jointly owned property with right of survivorship, all of which pass directly to the designated person or surviving owner.
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