Why Would a Court Say My Chosen Executor Cannot Serve?

In making the decision to meet with an estate planning attorney to create a Last Will and Testament, you will need to decide who to nominate as your Executor.  Among other responsibilities, your Executor is the person that will be responsible for making sure that your assets are distributed in accordance with your expressed wishes.

In deciding who to nominate as their Executor, most people consider only who they believe would be the best fit for the job.  Usually, this means they think about who would be most capable of handling the task at hand and who they can trust to complete the task as they would have wished.  Sometimes, however, an individual’s chosen Executor will not be permitted to serve and will be disqualified by the Court.

The Court wants to honor the intent of the deceased to the maximum extent possible, so there are very few blanket restrictions on who can serve as your Executor and who cannot.  Most such restrictions are a matter of common sense.  For example, people under the age of eighteen and people who are mentally incompetent are barred from serving as your Executor.  In most instances, the Court will not allow a foreign national not residing in the United States to serve as your Executor.  However, did you know that certain people convicted of crimes are also prohibited from serving as your Executor AND also that the Court can reject anyone it considers unfit?  Yes, the bad decisions of your family members and trusted friends can come back to haunt them after you are gone.

Up until recently, the Court did not ask someone who sought to become your Executor about their criminal history.  Court forms, however, changed this past spring to explicitly ask whether the person seeking to be appointed is a convicted felon.  Most people probably would not knowingly choose a convicted felon to serve as their Executor, but what about people with trusted family members or friends that – while having committed serious crimes – they still love and trust?

Unfortunately, those people will have to look elsewhere for an Executor.  Regardless of the circumstances surrounding a felony conviction, or how long ago the felony took place, convicted felons are one of those blanket classes that are not permitted to serve as the Executor of an Estate under the laws of New York.

Those who wish to nominate someone they know has had serious issues in the past, such as drug or alcohol addiction or financial issues such as bankruptcy, may also want to rethink their decision.  The Court wants your Estate to be administered quickly and efficiently in accordance with your wishes, and they do not always have to trust your judgment regarding the best person to do that.

Lauren E. Soule
Russo Law Group, P.C.
100 Quentin Roosevelt Blvd., Suite 102
Garden City, NY 11530
800-680-1717

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