Yes. Under New York law an attorney, including the attorney who drafted your will, can serve as its executor. But an attorney-drafter who is named executor stands to earn commissions from the appointment, so the Surrogate’s Court looks harder at these designations. The leading authority is the Putnam rule, from Matter of Putnam, 257 N.Y. 140 (1931), which requires that the appointment reflect the testator’s own informed choice rather than the attorney’s influence. When that standard is met, usually through a written disclosure and informed consent, the appointment is valid and enforceable.
This page deals specifically with the attorney-drafter as executor. For the broader question of who should serve, see our pages on letters testamentary and drafting a will in New York.
The Putnam Rule and Attorney Self-Dealing
New York courts have long recognized the risk that an attorney drafting a will could steer the client into naming the attorney as executor and collecting commissions the client never truly intended. In Matter of Putnam the Court of Appeals held that where the attorney-drafter is named as a beneficiary or fiduciary, the Surrogate’s Court examines the circumstances to confirm the bequest or appointment was the testator’s free and informed decision, not the product of the attorney’s overreaching. If the court finds undue influence, or that the testator did not understand the arrangement, the appointment can be set aside.
The professional-conduct rules point the same way. New York Rule of Professional Conduct 1.8(c) addresses gifts and bequests from clients to lawyers, and Rule 1.7 requires an attorney to avoid conflicts of interest and to act in the client’s interest rather than the attorney’s own. Neither rule prohibits an attorney from serving as executor. They require transparency, full disclosure of the alternatives, and a documented record that the client chose the arrangement freely.
The Informed Consent Document
The single most important safeguard is a written informed consent, signed by the testator and kept with the original will. A well-prepared consent records that the testator has been advised that the attorney can serve as executor; that the attorney would be entitled to executor commissions under SCPA § 2307 in addition to any legal fees; that family members, a bank, a trust company or another non-attorney could serve instead; and that if the executor needs legal services in administering the estate, the executor’s own law firm could provide them for a further fee. It also records that the testator had the opportunity to consult an independent attorney before signing the will, and decided to name the attorney freely and without pressure.
If the appointment is later questioned in the Surrogate’s Court, this dated, signed document is strong evidence of a deliberate choice and goes a long way toward satisfying the Putnam standard. We describe the statutory disclosure form on our page about the attorney-executor disclosure.
Commissions for an Attorney-Executor Under SCPA 2307
An attorney serving as executor earns the same statutory commissions as any other executor. Under SCPA § 2307 the commission is calculated on the value of the assets the executor receives and pays out, on a sliding scale.
| Value received and paid out | Commission rate |
|---|---|
| First $100,000 | 5% |
| Next $200,000 | 4% |
| Next $700,000 | 3% |
| Next $4,000,000 | 2.5% |
| Above $5,000,000 | 2% |
The attorney-executor’s commissions are separate from the legal fees the attorney’s firm may earn for legal work on the estate. The attorney wears two hats: executor, entitled to commissions, and estate counsel, entitled to reasonable legal fees. Two streams of compensation flowing to the same person or firm is exactly why the informed consent matters — the testator should understand it clearly before signing.
When Naming Your Attorney as Executor Makes Sense
An attorney-executor is often the right choice where the family is divided and any family-member executor would be seen as taking sides. A neutral attorney can administer the estate without favoring one group, and the attorney’s professional obligations require equal treatment of all beneficiaries. The same is true where a testator is worried that a particular relative would mismanage assets or favor themselves, or simply has no close family willing and able to serve.
Large or complicated estates also benefit from an executor who already knows Surrogate’s Court procedures, deadlines and disputes, and an estate with significant federal or New York estate tax exposure benefits from a fiduciary who understands tax planning and elections.
When It May Not Be the Best Choice
A modest estate with one or two beneficiaries who get along does not need a professional executor; combined commissions and legal fees can consume a small estate out of all proportion. Where a trusted family member has the time, the judgment and good standing with the rest of the family, a family executor is usually cheaper and more personal.
Continuity is another concern. If the attorney is older or a solo practitioner, the appointment may not be effective when it is needed, and naming a firm or a corporate alternate is more durable. An attorney who is not admitted in New York, or who does not practice in the relevant Surrogate’s Court, may have to bring in local counsel, which adds cost.
Structural Protections for Testators
A testator who wants the benefits of an attorney-executor while limiting the self-dealing concern can build protections into the will itself.
| Protection | How it works |
|---|---|
| Co-executor structure | A family member and the attorney serve as co-executors, so each acts as a check on the other. |
| Limited-duration appointment | The attorney serves only until specific tasks are complete, after which a named successor takes over. |
| Capped fees | Combined executor commissions and legal fees may not exceed a stated percentage of the estate. |
| Disclosure obligation | The executor must give beneficiaries periodic informal accountings even when the law does not otherwise require them. |
These provisions keep the advantages of an attorney executorship while addressing the concerns the Putnam rule exists to prevent. For more on accountability, see whether beneficiaries are entitled to a copy of the will and breach of fiduciary duty.
You Can Always Change Your Mind
Even after signing a will that names your attorney as executor, you can revoke or amend it by executing a new will or a codicil at any time while you have capacity. Reviewing your estate plan periodically, particularly after major life events, keeps the choice of executor in line with your wishes.
Frequently Asked Questions
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Is it legal for my attorney to be the executor of my will in New York?
Yes. New York law permits an attorney to serve as executor. Where the attorney also drafted the will, the court applies the Putnam rule and scrutinizes the appointment to confirm it reflects the testator’s free, informed choice.
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Does my attorney get paid extra for being executor?
Yes. An attorney-executor is entitled to statutory commissions under SCPA § 2307, which are separate from any legal fees the attorney’s firm earns for legal services to the estate.
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What is the Putnam rule?
It comes from Matter of Putnam, 257 N.Y. 140 (1931), and directs the Surrogate’s Court to examine appointments or bequests that benefit the attorney who drafted the will, to make sure they were not the product of undue influence.
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How do I protect my estate if I name my attorney as executor?
Sign an informed consent, consider naming a co-executor, and consider capping combined fees or requiring periodic accountings.
Speak With a New York Estates Attorney
If you are deciding whether to name your attorney, or anyone else, as executor of your New York will, we can walk you through the disclosure requirements, the commissions and the protective provisions, and we can draft the will and the consent so that the appointment holds up. Call 212-233-1233 or email [email protected].
