Fiduciary of an Estate

After a person dies, their property (also called the estate) must be divided.

Depending on what kind of estate proceeding was filed, this person is called different things.

  • In a probate proceeding, this person is the Executor. This person is named in the Will.
  • In an administration proceeding, this person is the Administrator. In general, this is the closest relative to the person who died.
  • In a small estate proceeding, also called a voluntary administration, this person is the Voluntary Administrator. In general, this is the closest relative to the person who died or the named Executor if there is a Will.

When a person dies with a Will, it is said that they died testate. If there was no Will, then they died intestate.

The fiduciary is appointed by the Judge in Surrogate's Court and may be represented by a lawyer if they wish.


Duties and Responsibilities

Executors, Administrators, and Voluntary Administrators are fiduciaries and have a fiduciary duty to the estate. This means that they have a legal duty to act faithfully towards the estate and not put their interests ahead of that duty.

The Surrogate's Court may require that a fiduciary be bonded before they are appointed. A bond is issued by a surety company and it acts as an insurance policy that provides security of the estate's assets. In this way, if the fiduciary does not take care of the estate, then the bonding company will be required to reimburse the estate for the loss. The bonding company will then try to recover the lost assets from the fiduciary.

Executors must carry out the wishes of the person who died as stated in the Will.

Administrators and Voluntary Administrators must settle the estate according to New York State laws of intestacy.

Fiduciaries are responsible for protecting the property until all debts and taxes are paid and to promptly and efficiently administer the estate.

In general, fiduciaries have three responsibilities:

  1. Collect, inventory, and appraise all the assets of the estate.
  2. Pay the bills, taxes, estate expenses, and creditors of the person who died.
  3. Transfer property according to the Will or, if there is no Will, then according to the law.
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