{Read in 6 Minutes} As a Trust and Estates attorney, I frequently help people write Wills, and after someone dies, I also help those nominated as Executors to offer the Will for probate in the Surrogate’s Court.
The choice of who to name as one’s Executor is very personal. Not only does the client need to have a significant amount of trust in the person, know they are financially and emotionally mature enough to handle what can be an exceptionally daunting task, and that this person also handles their personal effects, ensuring that all of their wishes are carried out.
Generally speaking, New York gives people broad choices with whom to nominate as their Executor in their Wills. One cannot name a minor. One cannot name someone who is a non-domiciliary alien (a person who’s not a US citizen, who’s also not a legal resident of the US) or someone who is suffering from diminished capacity. Until recently, anyone convicted of a felony, regardless of how serious the crime was and how long ago it occurred, was ineligible to receive Letters Testamentary and serve as Executor.
In 2021, the New York State Legislature amended its statutes to treat people convicted of felonies differently. A felony conviction is no longer an absolute bar to qualifying as an Executor. Now, the Surrogate’s Court judges have the discretion to determine whether the person can still serve as Executor. Specifically, the statute now says:
The Court now has discretion as to whether or not to appoint someone with a felony conviction, considering “an individual convicted of a felony whose crime may be adverse to the welfare of the Estate, including but not limited to, crimes such as embezzlement or any crime where there was a misappropriation of money or a breach of fiduciary duty.”
As a practical matter, this means that many more people are eligible and gives clients a significantly higher number of choices. Some examples:
Under the old law, the Court could not appoint them; under the new law, the Judge can consider the person:
•Maybe a client comes in and wants to name their spouse as the Executor. The spouse, now in their sixties, has a DUI conviction from when they were in their twenties. They have not had any further brushes with the law, nor do they have any substance abuse problems.
•An older adult in her eighties wants to appoint her daughter as an Executor. The adult daughter has a Class E (low grade) felony going back 30 years, involving importing six counterfeit purses from a foreign country as Christmas gifts for her friends.
•A client wants to appoint her brother as the Executor. The brother is now in his fifties and is a Judge on an appeals court. However, he has a felony for grand larceny from when he was a teenager and took a friend’s car and parked it on the other side of town as a prank. The friend’s parents, who owned the car, pressed charges.
Under the old law, all these people would be ineligible to serve as Executor. Under the new law, the Judge can consider the individual before them and, on a case-by-case basis, still issue Letters to them despite unfortunate incidents in their past.
Clients still need to consider who they want to appoint. I don’t recommend naming an Executor who is presently incarcerated, for example. It would be quite difficult to do the job from jail, even if they are competent and mature enough. Also, what about serial killers and the like? Probably not your best bet. If you plan to name someone who has an old low-level felony conviction, here are some things you might want to consider asking them:
•Ask if they have a Certificate of Relief from Civil Disabilities.
Someone convicted of a crime is eligible for this certificate once they have completed their punishment, whether it is incarceration, probation, fines, et cetera. This document restores a person’s civil liberties, the right to vote, the right to participate in jury service, and the right to serve as an Executor or Administrator. (If they have a Certificate of Relief from Civil Disabilities, you might want to stress that they must produce it during the probate process.)
•Talk to them about whether they are comfortable making these disclosures to the Court. In all of my examples above, these people would have to write affidavits explaining:
•their past crime(s);
•how they have turned their life around and are no longer the same person who committed the crime many years ago; and
•why the Judge should exercise discretion and appoint them.
This document becomes a matter of public record, so if they would like to leave the past in the past, they might not want to do that.
As with anything else, it’s important to put a lot of thought into the contents of one’s Will, including selecting an Executor. While an attorney is not necessary to write a Will, one of the benefits of having an attorney who practices in the Surrogate’s Court regularly would be the opportunity to discuss these issues and get that attorney’s feedback on how the judge might react to this particular case.
For more information on this topic, please contact me.