Who Can Be an Executor of a Will in New York

By Albert Goodwin, Esq. — New York estate, probate, and Surrogate's Court attorney. Law Offices of Albert Goodwin, with offices in Manhattan, Brooklyn, and Queens.
Last updated: June 2024

In New York, the person you name in your will to carry out your wishes is your nominated executor. But naming someone is only the first step. Before that person can actually act, the Surrogate's Court must find them eligible and issue letters testamentary. This guide explains exactly who qualifies, who is disqualified, and how eligibility is tested in practice in New York Surrogate's Courts — with the statutory rules under SCPA § 707, SCPA § 103, and SCPA § 1418.

The starting point: anyone is eligible unless disqualified

New York follows a presumption of eligibility. Under SCPA § 707, an adult is qualified to serve as executor unless a specific statutory disqualification applies. You are generally free to name a spouse, an adult child, a sibling, a close friend, your attorney, a bank or trust company, or anyone else you trust.

The practical question is not just "who can serve" but "who will the Surrogate's Court actually appoint after the will is offered for probate." Naming someone in the will is a nomination; the court's grant of letters testamentary is what gives that person legal authority to access bank accounts, sell property, pay debts, and distribute the estate.

Who is disqualified under SCPA § 707

Section 707 lists the categories of people who are ineligible to receive letters in New York:

• Infants — anyone under 18 years old.
• Incompetents — a person who has been judicially declared incompetent or incapacitated.
• Felons — a person convicted of a felony, in New York or elsewhere. (For a deeper look at this, see our page on whether a felon can serve as an administrator or executor.)
• Non-domiciliary aliens — a person who is both a non-resident of the United States and not a U.S. citizen, unless they serve alongside a New York resident co-fiduciary or qualify as a foreign guardian under SCPA § 1716(4).
• Persons the court finds unfit — anyone the Surrogate finds ineligible by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.

The court may also decline to appoint a person who cannot read and write English. Importantly, the "otherwise unfit" language gives the Surrogate meaningful discretion — and that is where most contested eligibility fights happen.

What "otherwise unfit" actually means in a contested case

The phrase "dishonesty, improvidence, want of understanding, or otherwise unfit" is not boilerplate. In our experience handling contested probate matters, objections to a nominated executor most often arise on these grounds:

• Dishonesty: documented theft, fraud, or a history of converting other people's money. A vague accusation is not enough — New York courts require a showing of actual dishonest conduct that bears on the management of estate funds.
• Improvidence: a demonstrated inability to manage money — for example, a long history of bankruptcies, judgments, or financial recklessness that suggests the person would mishandle estate assets.
• Want of understanding: cognitive impairment or an inability to comprehend the duties of the office. This is more than simple inexperience.

A key practical point: mere hostility between the nominated executor and a beneficiary is generally not a ground for disqualification. New York courts have repeatedly held that friction or animosity, standing alone, does not make a person unfit — the testator was entitled to choose them. To win an objection, an objectant must show that the conflict actually endangers the estate's administration, not just that family members do not get along.

How the eligibility fight unfolds in Surrogate's Court

When a will is offered for probate, a party with standing (often another beneficiary) may file objections to the issuance of letters to the nominated executor. The process generally looks like this:

1. The nominated executor petitions for probate and letters testamentary.
2. Interested parties receive a citation and an opportunity to object.
3. If an objection alleges a § 707 disqualification, the court may order an SCPA 1404 examination or a hearing on eligibility.
4. The objectant bears the burden of proving the disqualifying conduct.
5. If the court sustains the objection, it looks to the will's successor (alternate) executor, and if none is qualified, it appoints an administrator c.t.a. under SCPA § 1418.

This is why naming a successor executor matters so much. We have seen estates stall for months — and rack up unnecessary legal fees — because the will named only one executor who turned out to be a non-resident alien or a convicted felon, leaving the court to fall back on the statutory priority list under § 1418.

Can a non-resident serve as executor in New York?

Yes, with a key distinction. A U.S. citizen who lives in another state may serve as a New York executor. A person who is both a non-U.S. citizen and a non-U.S. resident generally cannot serve alone.

Out-of-state executors should be aware of two practical issues:

• Bonding. Surrogate's Courts in many New York counties are more likely to require a non-resident fiduciary to post a bond, even where the will waives bond, because the court wants security for the estate. A bond is essentially an insurance policy that protects beneficiaries against fiduciary misconduct; the premium is paid from estate funds and the surety company will review the fiduciary's credit before issuing it.
• Logistics. An executor in New York has to secure the decedent's apartment or home, coordinate with New York banks, work with a New York accountant for estate and income tax returns, and appear (or have counsel appear) in the county Surrogate's Court. Distance makes all of this harder, though not impossible. Naming a New York co-executor or local counsel can ease the burden.

Can a beneficiary be the executor?

Yes — and it is the most common arrangement in New York. Most people name a spouse, child, or sibling who is also a beneficiary. There is no conflict-of-interest disqualification simply because the executor inherits under the will.

The critical reminder is that the role of executor comes first. An executor who is also a beneficiary owes fiduciary duties to every beneficiary and to the estate as a whole — not just to their own share. When a beneficiary-executor favors their own interest, that is when removal proceedings and surcharge claims arise. (See our discussion of beneficiary–executor conflicts.)

Can your attorney be the executor?

Yes, but New York imposes special disclosure rules to protect clients. Before you sign a will naming the drafting attorney (or an affiliated attorney) as executor, the attorney must give you a written disclosure that:

• any qualified person may serve as executor;
• any executor, including an attorney, is entitled to statutory commissions;
• an attorney-executor may also collect separate legal fees for legal services rendered to the estate; and
• without your signed acknowledgment, an attorney-executor's commissions are reduced to one-half of the statutory commission.

You must sign an acknowledgment of this disclosure in front of at least one witness who is not the attorney. This rule, found in EPTL 2307-a, exists to prevent attorneys from steering clients into executor appointments for their own benefit.

Naming co-executors: when it helps and when it hurts

You may name more than one executor. Whether you should depends on the estate's size and complexity.

The friction point is that co-executors generally must act jointly. A New York bank typically will not release estate funds on one co-executor's signature alone; it wants both signatures or a court order. If one co-executor is out of state, unreachable, or simply disagrees, routine administration grinds to a halt and may require an SCPA proceeding to resolve.

For larger estates, a well-drafted will can allocate authority — for example, giving one co-executor primary responsibility for real estate and another for investments, with dollar thresholds above which both signatures are required. For small, simple estates, a single executor and a named successor is usually the cleaner choice.

What happens if the named executor is disqualified or won't serve

If the nominated executor is ineligible, declines, or has died, the court looks first to a successor executor named in the will. If none is available or qualified, the court appoints an administrator c.t.a. (cum testamento annexo — "with the will annexed"), following the priority order in SCPA § 1418. The will still governs distribution; the administrator c.t.a. simply carries it out. Learn more about administrator c.t.a. appointments and the related process for obtaining letters testamentary.

A practical checklist for choosing your executor

1. Confirm basic eligibility — adult, not a felon, and either a U.S. resident or a citizen (or paired with a New York co-fiduciary).
2. Pick someone financially responsible — they will hold and account for estate funds, file tax returns, and pay debts.
3. Prefer someone local or willing to retain New York counsel — to handle property, banks, and the Surrogate's Court.
4. Always name a successor (and ideally a second successor) — to avoid an administrator c.t.a. proceeding if your first choice can't serve.
5. Think twice about multiple co-executors — only use them for larger estates, with clearly drafted allocation of authority.
6. Address bonding — decide whether to waive bond, knowing the court may still require it for a non-resident.
7. Talk to your chosen person first — make sure they are willing and understand the responsibility.

Frequently asked questions

Can a felon be an executor in New York?

No. Under SCPA § 707, a person convicted of a felony cannot receive letters testamentary in New York. This applies to felony convictions in any jurisdiction.

Can a non-resident of New York be an executor?

Yes, if they are a U.S. citizen. A person who is both a non-U.S. resident and a non-citizen generally cannot serve alone, but may serve alongside a qualified New York co-executor.

Can a beneficiary be the executor?

Yes. Being a beneficiary does not disqualify someone. The executor must still act in the best interest of the entire estate and all beneficiaries.

Does an executor have to be a New York resident?

No. New York residency is not required for a U.S. citizen, though out-of-state executors may face bonding requirements and practical logistical challenges.

What if no one named in the will qualifies?

The court appoints an administrator c.t.a. under SCPA § 1418 to administer the estate according to the terms of the will.

Speak with a New York probate attorney

Choosing the right executor — or challenging the eligibility of someone named in a will — involves both the statutory rules of SCPA §§ 707, 103, and 1418 and the practical realities of your county's Surrogate's Court. If you are drafting a will, serving as a nominated executor, or are a beneficiary concerned about who will administer an estate, the Law Offices of Albert Goodwin can help. We handle estate planning and contested probate matters in Manhattan, Brooklyn, Queens, and throughout New York.

Call us at 212-233-1233 or email [email protected].

This article is for general informational purposes and is not legal advice. Reading it does not create an attorney-client relationship. For advice about your specific situation, consult a licensed New York attorney.