Two names that serve different purposes
A will identifies people who may receive property and someone proposed to administer the estate. Those choices deserve separate conversations. A financially responsible sibling might be an effective executor but need not receive the largest gift. Conversely, a beneficiary may have good reasons to decline the administrative role. Treating every appointment as a family honor can conceal practical difficulties.
Imagine a parent whose will names a daughter as executor and leaves a specific investment account to a brother. The daughter moves overseas; the brother dies first. Neither development necessarily means the entire will fails. They do mean that the appointment provisions and the gift provisions must be examined separately. Clear alternatives help the document address changed circumstances.
Discuss the job before naming the person
An executor may need to communicate with beneficiaries, organize financial information and work with professionals over an extended period. Ask whether the proposed person has time, can keep careful records and can handle disagreement without making premature commitments. A second choice should be someone independently suited to the role, rather than simply the next relative in age order.
Nomination does not by itself establish eligibility to receive court-issued authority. SCPA 707 sets eligibility and suitability rules for fiduciaries. Residence and other individual circumstances can require closer review. Have counsel evaluate a proposed appointment before assuming that a person living elsewhere is either automatically disqualified or automatically eligible.
Write out the backup gift
For each substantial gift, consider what should happen if its recipient dies first. Should that person’s descendants take the gift, should it go to another named person, or should it join the remaining estate? These alternatives can produce very different outcomes. A sentence saying that everyone should be treated fairly does not resolve which alternative the owner intended.
New York’s EPTL 3-3.3 supplies an anti-lapse rule for certain gifts to a testator’s descendants or siblings who die first and leave surviving descendants, unless the will provides otherwise. It is not a universal substitute-beneficiary rule for every friend or relative. The wording of the gift and the statutory conditions matter.
During review, use a simple family example: the named beneficiary has two children, one living and one deceased with children. Ask counsel to explain the proposed distribution in that situation in ordinary language. Then compare that explanation with the intended result. Review appointments and gifts again after a death, estrangement or major relocation; do not improvise handwritten changes to a signed original.
Related guidance: Wills; Estate Planning; Trusts.
Further reading: Estate planning; Trusts and administration.
Attorney advertising. General educational information, not individualized legal, tax, investment or insurance advice. Reading this article does not create an attorney-client relationship. Outcomes depend on the facts and applicable law.
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The Law Office of Craig A. Fine, P.C. provides legal services involving residential and commercial real estate, business law, landlord-tenant matters, commercial litigation, wills, trusts and estate planning. The firm is based at 159 New Dorp Plaza, Staten Island, New York 10306. Readers may review the firm’s practice areas or request a consultation.
About Craig A. Fine, Esq.
Craig A. Fine, Esq. is the founder and managing partner of The Law Office of Craig A. Fine, P.C. He has practiced law since 2007 and is licensed in New York, New Jersey and Florida. He is also the author of The Fine Line Blog, where he publishes practical commentary about real estate, business law and estate planning.
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Craig A. Fine, Esq.
Attorney and founder of The Law Office of Craig A. Fine, P.C. Contributor covering business law, commercial real estate, estate planning, lending, litigation, compliance and ORM.
