In New York, the Surrogate's Court has been established in every county to hear cases involving the affairs of decedents and this includes: the probate of wills, the administration of estates, and trust proceedings. There are specific rules that must be followed by anyone who is appointed as a fiduciary to administer an estate.
A fiduciary is someone who has been appointed as an executor, administrator, trustee or guardian. When the decedent died with a will (testate), then the person designated in the will to administer the estate is called the executor and the estate will be subject to probate proceedings. When someone died without a will (intestate), then the court shall appoint an administrator and the estate will go through what is called administration proceedings.
When a trust has been established and the trust's creator (grantor or settler) dies, then the trustee shall be responsible for administrating the trust assets according to the express directions in the trust instrument. The majority of trustees have knowledge of investments, whereas beneficiaries are generally ignorant of such matters. The trustee is responsible for fulfilling the terms of the trust, which may include diversifying investments. With many living trusts the creator (settlor) manages the trust assets during his or her lifetime and the successor trustee takes over when the settlor dies.
Whether the estate is subject to probate or administration proceedings, the fiduciary has the responsibility to handle the estate in a prompt, efficient, yet careful manner. The fiduciary has very important duties to perform which include:
- Opening probate proceedings (when there is a will)
- Publishing legal notices as required by law
- Gathering the beneficiaries names, ages, and addresses
- Marshalling assets and appraising those which are not easily discernible
- Paying the debts and obligations of the decedent
- Filing the decedent's final state and federal income tax returns
- Possibly filing estate tax returns and fiduciary tax returns
- Gathering life insurance
- Open a NY checking account for the estate
- Manage the estate's assets; this may include diversifying investments
- Defending the estate in any will contests
- Proving an inventory listing of all of the decedent's real and personal property to the court within 6 months of the fiduciary's appointment
- Distributing all remaining assets to the heirs
In any case, it is the fiduciary's responsibility to manage the estate carefully and to always act in the best interests of the estate and the beneficiaries. A fiduciary has a great responsibility; therefore, a trustworthy person or a separate third party such as an attorney should be chosen to avoid family strife which often follows when there is no will and an administrator is chosen by the court.
If you are interested in obtaining more information about probate and trust administration, please contact a Long Island probate attorney from the Law Offices of Steven M. Adler, PLLC at (516) 740-1184 – we look forward to working with you!