The selection or nomination of an Executor or Trustee is one of the most important decisions made by the creator of a Last Will or Trust. No matter how precise and formulated an Estate Plan may be, the selection of a person as Executor who makes poor decisions or fails to follow the creator’s intentions can destroy the entire plan. As discussed in many posts in the New York Probate Lawyer Blog, when a person dies intestate (i.e., without a will), the provisions of the New York Surrogate’s Court Procedure Act (“SCPA”) Section 1001 determines who will be appointed as the Estate Administrator. Therefore, if a person takes the time and effort to avoid the statutory selection process and to put into writing an estate plan, it is imperative to make careful decisions regarding the selection of fiduciaries.
From a personal preference vantage point, there are no set criteria that a person must meet in order to be nominated as an executor or trustee. However, there are a number of important considerations. To begin with, the nominee should be someone the creator has full confidence in as to honestly and integrity. The creator also should feel assured that the nominee understands the creator’s intentions and desires and will do their best to carry out the creator’s plan in a manner that the creator would do. It is the job of the fiduciary in Estate Settlement to collect estate assets, pay estate bills and expenses and distribute the net estate to the beneficiaries. The Executor has a legal obligation to deal fairly and honestly and not to self-deal or take advantage of estate affairs for his own benefit.
New York Estate Lawyers are also aware that in many instances it is a good idea to discuss the possible appointment with the nominee to make certain that the nominee is agreeable to accepting the appointment when needed. If the potential nominee is reluctant to serve, it is better for the creator to find out now and be afforded the chance to make a different choice before a Will or Trust is finalized.
In most instances the choice of a fiduciary is easy since the selection is a spouse or children and the family situation is harmonious. However, where less cordial family relationships are present or persons other than close relatives are being selected, the choices may become more critical since the possibility of Estate Litigation or other Estate disputes require fiduciaries of good and strong character to protect the creator’s plan from attack. It should be recognized that a fiduciary does not need to be experienced or have any business or financial background. As long as the fiduciary has some common sense and the ability to make clear decisions, the fiduciary can hire professionals such as attorneys, accountants and financial advisors to help with technical advice in Estate Administration. Estate Lawyers in New York are generally experienced and can guide the Executor through the complexities of the Probate Process in Surrogate’s Court and estate settlement.
SCPA Section 707 entitled “Eligibility to receive letters” provides the basic statutory qualifications for appointment as a fiduciary. The statute sets forth a set of legal criteria for appointment. A person will be disqualified to be appointed if the person is an infant, or incompetent or a non-domiciliary alien, a felon or did not possess qualifications due to “substance abuse, dishonesty, improvidence, or want of understanding, [or] is otherwise unfit for the execution of the office.” The statute also provides that the court may reject a person who cannot “read or write the English language”. The selection of a fiduciary such as an Executor or Trustee is an important aspect of Estate Planning and Estate and Trust Administration. I have assisted clients over the years in creating their estate plans and have also represented many fiduciaries in estate and trust matters.