A common problem with executors is that by the time it is their turn to serve, they may no longer qualify. They may be too old or sick to properly care for your estate. They may even have a felony or leave the country, or be disqualified for a number of other reasons, some of which we are going to discuss. This problem can often be avoided by having alternate executors in the will.
When drafting a will with the help of a New York estate attorney, you need to put a great deal of thought into many things, such as how you will give away your assets after you pass away. Of great importance when writing a will is determining who will be the executor of that will. The issue of who the executor will be is important because you want to make sure that your will is dispersed according to your wishes. However, what you may not have thought of is whether or not the executor that you wish to probate your will is actually considered qualified to do so under New York law.
New York law offers some guidance to those who are developing their estate plans as to who is qualified and who is not. New York Surrogate’s Court Procedure Act § 707, “Eligibility to Receive Letters,” lists the reasons for being disqualified as a New York estate executor. Being aware of these laws is essential, not only when you are developing your plan, but also when it comes to the future if the person who your originally chose becomes ineligible.
To begin with, an executor in New York must be over the age of 18 and not be considered incompetent by the courts. The “over the age of 18” requirements means the person has to be at least 18 at the time they are being considered by the court to be an executor (so theoretically, someone who was not 18 at the time of making of the will would be eligible. Although it is not recommended to nominate persons who are under 18 as an executor of the will, it is standard practice to name persons who are under 18 as alternate executors, because of the possibility that the person who is nominated as the primary executor would be too old to serve by the time the will takes effect.
While not having a minor serve as executor may be obvious, it is competence that could become an issue in the future. If, for example, you choose an executor who later becomes incapacitated due to illness, such as Alzheimer’s, it would probably be necessary to change who the executor in your will is. Once again, we come back to having an alternate executor – an important thing to have in a will.
Beyond competence and age, there are additional restrictions on who can serve as executor. A convicted felon, for example, would not be able to serve. A non-citizen who does not live in New York is not allowed by default, but can be allowed with the court’s permission with a separate application. A person who does not have a good grasp on reading and writing the English language can be disqualified by the court. Someone who is an addict, acts dishonestly, cannot understand what would need to be done as executor or someone otherwise ineligible will also not be appointed by the court as an executor of a New York estate.
Other things to consider that may not officially be barred by New York law would be things that could have an effect on the potential executor’s ability to handle day to day transactions, such as if they move out of state or had some major life change that would mean they wouldn’t reasonably be able to do his or her duties.
It is important that you keep track of your potential executor in case anything would disqualify them to make sure that your estate can be settled smoothly for your heirs. This would mean that you may want to consider going to your New York estate attorney to have your will changed if something disqualifies your executor, such as a felony conviction or finding out that the executor may not be able to handle the requirements of their nomination for some other reason. By making sure that you have a stable and responsible executor, who is allowed to hold the position through New York law, you will help cut down on potential litigation related to your estate.
If you are a potential executor who has a possibility of being disqualified, or if you are trying to disqualify a potential New York executor, schedule a consultation with New York estate attorney Albert Goodwin by calling (212) 233-1233.