Written by attorney Sharon M. Siegel

When Do I become the executor?

First, a personal can only petition the court to be named executor after the testator (the person who wrote the will) has died. A person only becomes an executor under a will when the Surrogate's Court appoints them by a probate decree. A person is not the Executor of an estate simply because they are named in a will and has no authority until the court says so. This is because the Surrogate's Court must ensure that all who are entitled to notice of the probate (either by a notice, citation, or otherwise) get it and that there are no challenges to the will. The court must also ensure that simply because no one is challenging the probate, the court itself is satisfied with the will. This can become an issue when the closest living relatives are closer than first cousins once removed. The court can also decide to appoint a guardian if one of the beneficiaries is disabled. There are many things that can hold up a probate and they are too numerous to elaborate, although most probates go smoothly if properly planned. However, bottom line, until the entire probate process is complete and a probate decree is issued, you are not the executor - even if the wil says so and the decedent always told you that you were. If you have to act immediately as executor, this is something you must advise your lawyer and there are mechanisms for getting temporary powers or the like.

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