Naming Your Attorney as Executor in New York: Rules, Risks, and Protections

Yes. Under New York law, an attorney can serve as the executor of your will. But because the attorney who drafts your will may also stand to benefit from the appointment through executor commissions, New York courts apply heightened scrutiny to these designations. The leading authority is the Putnam rule, derived from Matter of Putnam, 257 N.Y. 140 (1931), which requires that the appointment reflect the testator's genuine, informed choice rather than the attorney's influence. When that standard is met — typically documented through a written disclosure and informed consent — the appointment is valid and enforceable.

This page focuses specifically on the rules that apply when your attorney-drafter is named as executor. If you are weighing who should serve more generally, 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 influence the client to name the attorney as executor and collect commissions the client never truly intended. In Matter of Putnam, the Court of Appeals established that where an attorney-drafter is named as a beneficiary or fiduciary, the Surrogate's Court will examine 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 framework reinforces this. New York Rule of Professional Conduct 1.8(c) addresses gifts and bequests from clients to lawyers, and the broader fiduciary obligations under Rule 1.7 require an attorney to avoid conflicts of interest and to act in the client's interest rather than the attorney's own. These rules do not prohibit an attorney from serving as executor — they require transparency, full disclosure of 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 informed consent acknowledges in writing that the testator:

• Has been advised that the attorney can serve as executor.
• Has been told that the attorney would be entitled to executor commissions under SCPA § 2307 in addition to any legal fees.
• Has been advised that family members, a bank, a trust company, or other non-attorneys could also serve as executor.
• Has been told that if the executor requires legal services in administering the estate, the executor's law firm could provide those services for a fee in addition to the commissions.
• Has had the opportunity to consult with an independent attorney before signing the will.
• Has decided to name the attorney as executor freely and without pressure.

If the executor appointment is later questioned in the Surrogate's Court, this dated, signed document is strong evidence of the testator's deliberate choice and helps satisfy the Putnam standard.

Commissions for an Attorney-Executor Under SCPA 2307

An attorney serving as executor is entitled to the same statutory commissions as any other executor. The commission schedule under SCPA § 2307 is based on the value of the assets the executor receives and pays out, on a sliding scale:

• 5% on the first $100,000
• 4% on the next $200,000
• 3% on the next $700,000
• 2.5% on the next $4,000,000
• 2% on amounts above $5,000,000

Critically, the attorney-executor's commissions are separate from the legal fees that the attorney's firm may earn for providing legal services to the estate. The attorney effectively wears two hats: executor (entitled to commissions) and the estate's attorney (entitled to reasonable legal fees for legal work). This potential for two streams of compensation to the same person or firm is precisely why the informed consent process matters — the testator should clearly understand it before signing.

When Naming Your Attorney as Executor Makes Sense

An attorney-executor can be the right choice in several situations.

Family conflict. When 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. The attorney's professional obligations require equal treatment of all beneficiaries.

Complex estate. Large or complicated estates benefit from an executor experienced with Surrogate's Court procedures, deadlines, and disputes.

Lack of suitable family. Some testators have no close family or none willing or able to serve.

Concern about a particular relative. A testator worried that one family member would mismanage assets or favor themselves can intentionally appoint an outside attorney.

Tax-sensitive estate. Estates with significant federal or New York estate tax exposure benefit from a fiduciary who understands tax planning and elections.

When It May Not Be the Best Choice

Small, simple estates. 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 disproportionately.

Strong family executor available. Where a trusted family member has the time, judgment, and good standing with the rest of the family, a family executor is often more cost-effective and personal.

Continuity concerns. If the attorney is older or a solo practitioner, the appointment may not be effective when needed. Naming a firm or a corporate alternate is more durable.

Geographic limitations. An attorney not admitted in New York or not practicing in the relevant Surrogate's Court may need to bring in local counsel, adding cost.

Structural Protections for Testators

For testators who want the benefits of an attorney-executor while minimizing self-dealing concerns, several protections can be built into the will:

• Co-executor structure. Name a family member and the attorney as co-executors so each acts as a check on the other.
• Limited-duration appointment. Direct that the attorney serves only until specific tasks are complete, after which a successor takes over.
• Capped fees. Direct that combined executor and legal fees not exceed a stated percentage of the estate.
• Disclosure obligation. Require periodic informal accountings to beneficiaries even when not otherwise required by law.

These provisions preserve the benefits of attorney executorship while addressing the legitimate concerns the Putnam rule was designed 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 executing a will that names your attorney as executor, you can revoke or amend it by executing a new will or codicil at any time while you have capacity. Reviewing your estate plan periodically — particularly after major life events — ensures your choice of executor still reflects your wishes.

Frequently Asked Questions

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, but where the attorney also drafted the will, courts apply the Putnam rule and scrutinize the appointment to confirm it reflects the testator's free, informed choice.

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.

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, ensuring they were not the product of undue influence.

How do I protect my estate if I name my attorney as executor?

Use a signed 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, our firm can walk you through the disclosure requirements, commissions, and protective provisions. We have offices in New York City, Brooklyn, and Queens. Call 212-233-1233 or email [email protected].

About the author: This article was written by Albert Goodwin, Esq., a New York estate and probate attorney admitted to practice in the State of New York. The Law Offices of Albert Goodwin handles wills, probate, and Surrogate's Court matters throughout New York City, Brooklyn, and Queens.

This page is general legal information about New York law and is not legal advice. Reviewing your specific situation with an attorney is recommended. Last reviewed: June 2024.