New York Estate Planning & Elder Law Blog
One of the most important parts about planning your estate is appointing an executor to oversee an estate and carry out your final wishes which can include passing an estate through the probate court, settling estate debts, and ensuring heirs receive their inheritance. Often times, family members or close friends are asked to serve as executors to estates but in New York, there are only a few restrictions on who may act in this capacity.
Under N.Y. Surr. Ct. Proc. Act § § 103, 707, the basic rules for serving as an executor of an estate are:
- The person is at least 18-years old
- The individual has not been judged to be incapacitated by a court
- The intended executor does not have a felony conviction
While these are the basic statutory restrictions for who may serve as an executor to an estate, the judge overseeing the case in probate court may dismiss the individual for other reasons under N.Y. Surr. Ct. Proc. Act § § 103, 707. This can include the proposed executor having a history of substance abuse, being untrustworthy or dishonest, or not being able to read and write English.
There are also limited residency requirements for executors of estates in New York. The law typically requires the executor to either be a U.S. citizen or a legal resident residing inside the United States. Non-citizens must reside in the state of New York while U.S. citizens may be residents of any state in the Union.
While every individual’s situation is unique, it is generally a good idea to appoint an executor who resides in the state of New York. The reason is simply because an executor who is proximate to the state can better fulfill his or her duties required under New York probate laws. Those responsibilities include accounting for all of the assets in the estate, paying taxes, settling any outstanding debts, and ultimately ensuring the estate is divided as the deceased had intended.
Another important factor in deciding who to choose as an executor comes down to picking someone who is not only honest and trustworthy but also willing to accept the duties expected to successfully pass an estate through probate. Under the law, individuals are within their rights to decline their appointment as an executor which will leave the decision to the judge hearing the case and potentially installing someone the testator would otherwise not have chosen.