In New York, when a person dies testate the last will and testament usually names an executor. It is typically the nominated (named) executor who serves in that capacity – but not always. Sometimes the nominated executor is deceased, disqualified as a potential fiduciary, or simply does not want the job. Who is then entitled to serve as executor of the estate?
First: some potential reasons why the executor nominated in the will might not be able to serve. The nominated executor is not permitted to serve if he or she is:
- Under the age of 18;
- Incompetent (lacks understanding);
- A non-resident alien, that is, a person who is neither an American citizen nor lives in the United States;
- A convicted felon (or convicted of a crime in another state that would be a felony under New York law).
(Surrogate’s Court Procedure Act §707)
Further, individuals who do not “possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who are otherwise unfit to the execution of the office” are not eligible to serve as executor. Nor are individuals who are deemed ineligible in the Surrogate’s discretion. Surrogate’s Court Procedure Act §707.
Most wills name an alternate executor, which is important when the named executor does not serve. In some situations, the will does not name an alternate executor or the alternate executor cannot or will not serve. If this is the case, a person not named in the will might seek to be appointed to represent the estate. Such a person is referred to as “administrator c.t.a.” (And that person seeks Letters of Administration c.t.a.) The abbreviation “c.t.a.” stands for cum testament annexo, Latin for “with the will attached”. An administrator c.t.a. functions like an executor, having the authority to collect and distribute the decedent’s assets pursuant to the terms of the will (not the laws of intestacy).
Under New York law, the following individuals, in order of priority, may serve as Adminstrator c.t.a:
- The sole beneficiary named in the will (if any), or if he is deceased, his fiduciary;
- One or more of the residuary beneficiaries, or if any is deceased, his fiduciary;
- If no eligible person under sections 1 and 2 above will accept, the Surrogate may issue letters to one or more individuals interested in the estate, or if any is deceased, to his fiduciary.
- If no eligible person under sections 1, 2, and 3 above will accept (and no appointment is made upon the consent of all beneficiaries), then letters issue to the Public Administrator.
- If no one under the above sections will accept letters, the Surrogate may issue them to the petitioner; if the petitioner does not accept, then letters may issue to any person designated by the Surrogate (however, this rarely happens).
Letters may also be granted to a person not otherwise entitled to serve if all the beneficiaries are eligible to serve and they all consent to the appointment.
For example, suppose Sam passes away leaving a will, in which he leaves his entire estate to his sister, Fiona. Fiona is a fashion model who is constantly traveling the world for photo shoots and does not have the time to take on the responsibilities of an executor. Assuming Fiona is eligible to serve as executor, she may designate her trusted friend Alex to serve as administrator c.t.a. if he is willing to accept. This is true even though Alex has no interest in the estate.