If you write a will, one of the most important decisions you make will be choosing the executor. The executor is the person in charge of presenting the will to the court and carrying out your wishes as expressed in the will. A New York elder law attorney can help you make an appropriate choice.
If you die without a will, or if your will is not valid for some reason, the court will appoint someone to be in charge of distributing the assets of your estate. New York law determines who is eligible to be an executor of a will or the personal representative of an estate if a person dies without a will. Generally, if you have named an executor in your will and that person is willing to serve in that role, the court will defer to that choice and name that person as executor. However, the person still must be eligible under New York law. Some people are not eligible and therefore are not allowed to serve, even if they are named in a valid will.
Who is ineligible to be an executor or personal representative?
Certain categories of persons are not permitted to serve in this role:
- A person under 18
- A person who has been legally adjudicated as incompetent
- A non-resident of New York, unless there is more than one person being appointed
- A felon
The court, in its discretion, may also determine that certain other persons are not qualified:
- A person the court determines is not qualified because of substance abuse, dishonesty, irresponsibility with money or inability to understand the requirements of being an executor
- A person who is “otherwise unfit” for being an executor
- A person illiterate in English
Who will be chosen if the named person declines or is disqualified?
If the person named in the will declines to serve or is disqualified, New York law determines who will be named. The law provides an order of priority, so the court is required to appoint an eligible, qualified person higher on the list before appointing someone lower on the list. The person who is appointed must also be someone who receives something under the will, or from the estate, if there is no will.
This may include:
- The surviving spouse, if there is one
- The children
- The grandchildren
- The parents
- The siblings
- Anyone else who receives something from the estate, with preference for those who receive more
Special rules apply if the only person receiving the estate is a child or is incompetent. If everyone receiving anything from the estate agrees, a trust company or other corporation may be appointed. Under some circumstances, a public administrator or other fiscal officer of the county may also be appointed. A probate attorney in New York can help you insure that a suitable person is selected to carry out your wishes.