The Selection of a New York Fiduciary Should be Accepted By a Court

New York Estate Planning Lawyers need to discuss many different issues with their clients. Among the most important considerations is the selection of Executors and Trustees. An Executor is nominated in a Last Will and Testament. Typically, the Will also provides the name of successor Executors in the event the primary nominee cannot or will not serve. A Trustee is also nominated to act in a Will provision regarding a testamentary trust. This is a trust that is created in the Will. There are also trustees that are nominated in trusts that are created outside of a Will in so-called inter vivos trusts. A Living Trust or Grantor Trust is a typical example.

When choosing a fiduciary such as an Executor or Trustee the creator should give the selection some basic considerations.  These include some understanding as to whether the person nominated will accept the appointment.  Some individuals do not want to accept the responsibility of acting as an Executor or Trustee or may not have the time to devote to this task.  When selecting a fiduciary, the creator may want to first ask the prospective nominee if they would accept the appointment.

Another consideration is the ability of the nominee to perform the functions of a fiduciary. An Executor or Trustee has many fiduciary duties such as collecting assets, paying debts and expenses and making distributions to estate or trust beneficiaries. The fiduciary does not need to be an attorney or financial expert to perform these functions. Fiduciaries should have the qualities of trustworthiness and common sense to obtain guidance from a Trusts and Estates attorney and other professionals. In most cases a family member who cares about fulfilling the creator’s wishes and who can act responsibly is a good choice for appointment.

Surrogate’s Court Procedure Act (SCPA) Section 707 entitled “Eligibility to receive letters” provides the basic rules for a fiduciary to be appointed.  For example, under this section a non-domiciliary alien cannot act alone as a New York fiduciary.

Typically, the Courts respect the wishes of a creator who nominates an Executor or Trustee and will appoint such person unless there is some specific issue such as incapacity or lack of trustworthiness. The Courts require that very specific facts be presented before the Court will override a creator’s appointment.

A recent case decided by Bronx Surrogate Nelida Malave-Gonzalez on April 1, 2016 provides an example of the Court’s deference to the creator’s appointment. In Estate of Markowicz the decedent’s spouse was nominated as the Executor.  The decedent’s daughter objected to the spouse’s appointment and claimed that the spouse was 91 years old and lacked capacity and was subject to control by the decedent’s son. The Court found that the daughter’s assertions were unsupported by evidence that the spouse was not competent to act as Executor and that no basis was presented pursuant to SCPA 707 to disqualify the spouse.

As can be seen from Markowicz, the nomination of an appropriate Executor or Trustee is important, particularly when the creator wants to select a person that he feels will fulfill his intentions regarding estate or trust administration.

If you have any questions regarding your estate plan or the appointment of an Executor or Trustee call me now for a free review. I have assisted many clients with estate planning matters and estate settlement issues.

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 Manhattan and Brooklyn. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.

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