When a person prepares an Estate Plan and a Last Will and Testament one of the important decisions to be made concerns the selection of an Executor. A Last Will contains a provision in which the testator nominates an Executor. It is also important to nominate a successor or alternate Executor in case the primary nominee is unable to serve as a fiduciary. A Will may also contain a provision appointing testamentary trustees if the testator created a testamentary trust in the Will.
The person selected to act as the Executor can be anyone that the testator wants to be in charge of estate administration. The person selected is typically a family member or friend. There is no requirement that the Executor have any experience or expertise in handling estate matters or have any financial background. There is also no requirement that the Executor be living in New York. The fiduciary has the authority the obtain the services of professionals such as attorneys, accountants and investment advisors to help with the various tasks regarding settlement of the estate.While the Executor can be anyone that the testator trusts and has confidence in to perform fiduciary duties, there are certain provisions of the New York Estate laws that provide general requirements. Surrogate’s Court Procedure Act (SCPA) Section 707 entitled “Eligibility to receive letters” sets forth specific requirements that a fiduciary must have. The statute refers to “letters” because when a fiduciary is appointed, the Court issues letters testamentary to an Executor. Other types of fiduciaries receive different letters. For example, when a decedent does not have a Will the Court issues letters of administration to the estate administrator.
Among the requirements in SCPA 707 is that a fiduciary cannot be an infant or an incompetent or a felon or a person who may be disqualified due to dishonesty or other issues. The New York Probate Lawyer Blog has discussed the qualifications of estate fiduciaries in prior articles.
There may be challenges by interested parties to the qualifications of a fiduciary. In a recent case decided by Albany Surrogate Stacy Pettit on September 28, 2017 entitled Matter of Marriott, the Court denied a challenge to the appointment of an Executor based upon the executor’s alleged lack of ability to care for himself and a lack of mental capacity. The Court found that the proposed Executor, in his capacity as Preliminary Executor and with the assistance of counsel, had virtually administered the estate by collecting all estate assets and had paid all debts. Since the estate was ready for final settlement and distribution the Court dismissed the challenge to the proposed Executor.
I have represented clients regarding the appointment of Executors and Administrators. These cases can be complicated. Call me now if you have questions or concerns regarding the appointment of an estate fiduciary or estate settlement.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Queens and New York. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.