Administrator or executor for felons – how does it work

Question: I have a felony, can’t become executor or administrator, what should I do?

Answer: You can either get a certificate of relief from civil disabilities, you can have an attorney serve as your executor, or you can have the Public Administrator serve as the executor. You can also apply to ask the judge to determine that you are fit to serve as an executor or administrator.

Why a Felony Conviction Disqualifies You in New York

New York law treats the role of an executor or administrator as a position of trust. The person serving collects estate assets, manages property, pays debts, files tax returns, and distributes what is left to beneficiaries. Because the fiduciary holds money and property that does not belong to them, the law screens out individuals whose criminal history raises a concern about handling other people’s assets.

SCPA § 707 sets out who is ineligible to serve as a fiduciary in New York. The statute lists, among others, infants, incompetents, non-domiciliary aliens (except under limited circumstances), and felons. The plain effect of the statute is that a person convicted of a felony, anywhere in the United States or under any foreign jurisdiction whose conviction would constitute a felony in New York, cannot ordinarily be appointed executor, administrator, trustee, or guardian by the Surrogate’s Court.

It does not matter, for purposes of the statute, whether the felony was violent or non-violent, whether it was a financial crime, or whether it happened decades ago. The Surrogate’s Court will look at the certificate of disposition and apply the statute. That is why so many otherwise qualified family members get blocked when they try to file a petition – the court runs a background check and the prior conviction surfaces.

Option 1: Apply for a Certificate of Relief from Civil Disabilities

The most common path to becoming eligible again is to obtain a Certificate of Relief from Disabilities. This certificate is governed by Article 23 of the New York Correction Law. It restores certain rights that were forfeited as a result of a conviction. Importantly, the certificate can specifically include the right to serve as a fiduciary of an estate.

If you were sentenced in New York and received a conditional discharge, probation, or a sentence not requiring a state prison commitment, the sentencing court has authority to issue the certificate. If you were sentenced to state prison, the New York State Department of Corrections and Community Supervision (through the Board of Parole) is the agency that issues the certificate. The application can be made at sentencing, while still on supervision, or at any later time.

The decision is discretionary. The agency or judge will look at the nature of the underlying offense, how much time has passed, your conduct since the conviction, your employment, family responsibilities, and any evidence that you are now a person of good character. Letters of reference, proof of steady work, completion of treatment programs, and the absence of further arrests all help. The certificate, once issued, is a powerful document – the Surrogate’s Court will generally accept it as removing the bar in SCPA § 707.

Option 2: Apply for a Certificate of Good Conduct

If you have more than one felony conviction, you cannot get a Certificate of Relief from Disabilities and must instead apply for a Certificate of Good Conduct. This is also issued by the New York State Board of Parole. The waiting period before you can apply depends on the class of felony – generally three years for a Class D or E felony, four years for a Class C felony, and five years for a Class A or B felony, calculated from the latest of release from confinement, discharge from parole, or payment of any fine.

The Certificate of Good Conduct, like the Certificate of Relief, can specifically restore the right to serve as a fiduciary. When you file the petition in Surrogate’s Court, you attach the certificate and the court treats you as eligible to receive letters testamentary or letters of administration.

Option 3: Ask the Surrogate to Find You Fit to Serve

Even without a formal certificate, the Surrogate has some discretion under SCPA § 707 to evaluate whether a person who would otherwise be barred is actually unfit. The statute uses the word “felon” but the courts have read in a measure of judicial review – the question is whether the conviction makes the person unsuitable to handle the particular estate in front of the court.

This is a harder argument to win than presenting a certificate, but it is not hopeless. It usually requires a hearing, testimony from the petitioner and character witnesses, and a showing that the conviction was old, unrelated to financial misconduct, and that the petitioner has lived honestly since then. Beneficiaries who consent to the appointment can also influence the result. In contested cases, however, an objectant will almost always raise the felony, and the court will lean toward declaring the petitioner ineligible unless the proof is strong.

Option 4: Have an Attorney Serve as Executor

If you were the person nominated in a will but you cannot qualify because of a felony, the will may still be probated – it just will not be probated with you serving. If the will names a successor executor, that person can apply. If there is no named successor, or the successor also cannot serve, the court will look to interested parties to nominate someone fit. Many families ask an attorney to serve in this situation. An attorney-executor takes commissions like any other fiduciary and is bonded and supervised by the Surrogate’s Court.

Having an attorney act as executor is often the cleanest solution when family members are disqualified, in conflict with each other, or simply not willing to take on the work. The attorney keeps the estate moving forward, deals with creditors and the Department of Taxation and Finance, and pays the beneficiaries when the accounting is approved.

Option 5: Let the Public Administrator Handle the Estate

Each county in New York has a Public Administrator – a public official whose office administers estates where no qualified family member is available. If you have a felony and there is no one else suitable to serve, the Public Administrator can be appointed as administrator (where there is no will) or as administrator c.t.a. (when there is a will but no one qualified to act under it). The Public Administrator’s office charges statutory fees and uses outside counsel, so the estate pays for the service, but the office is experienced and the appointment process is well-established.

What If You Are Already Named in a Will?

A testator (the person making the will) can name anyone they want as executor. But naming someone in a will does not override the eligibility rules in SCPA § 707. If you were named, and you have a felony, you have a choice: try to clear the bar with a certificate, ask the court to find you fit anyway, or renounce the appointment so the named successor (or a court-appointed substitute) can step in. Renunciation is a simple form filed in the Surrogate’s Court – it is not a permanent admission of unfitness, just a decision not to serve in that particular estate.

Practical Steps to Take Now

If you are facing this issue, begin by pulling a Certificate of Disposition for each conviction so you know exactly what you are dealing with – the class of felony, the sentencing date, and the disposition. Next, look at whether enough time has passed to apply for the appropriate certificate. Gather the supporting documents – employment records, references, treatment completion records – before you file. The application is reviewed more favorably when it is well-prepared.

While the certificate application is pending, the estate may not be able to wait. In that case, it is often best to have a temporary administrator appointed, usually an attorney, to preserve assets, pay urgent bills, and keep insurance in force. Once your certificate is granted, you can move to have yourself appointed as the permanent fiduciary if that is still the right outcome.

Talk to a New York Estate Attorney

Every situation is different. The age of the conviction, the type of felony, the size of the estate, and the position of the other beneficiaries all change the analysis. If you are facing a Surrogate’s Court appointment and you have a prior felony, do not assume the door is closed. There are several established paths to either qualify yourself or get the estate administered by someone else without losing your interest as a beneficiary.

If you are looking for an attorney, you can call us, the Law Offices of Albert Goodwin, at 212-233-1233. We have offices in New York City, Brooklyn, and Queens, and we handle Surrogate’s Court matters throughout New York State. You can also reach us by email at [email protected].