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New York is one of the most prominent immigration destinations in the world.  Many people leave their old life behind and make the journey to New York to start anew.  So, this begs the question, can you name an overseas relative as the executor of your will?  For those who are unsure what an executor is, read on as we will discuss the role of an executor below.  The answer is not exactly cut-and-dry but oftentimes the answer is no.  New York law prohibits a non-U.S. citizen who lives outside of New York from acting as the sole-executor of your will.  

This rule is not so clear-cut, so we will dive into what the parameters are and offer some alternative solutions.  We will address who can be executors in New York and what you should consider when deciding on who should be the executor of your estate.

Role of an Executor

An executor is the person who you name to carry out your wishes in your last will and testament.  You will name the executor in your will and once you pass, the executor will be tasked with passing the will through probate, doling out your assets to your heirs, and completing all the necessary tasks of the executor.  These tasks include:

1. Pay off outstanding debts of the decedent;
2. Pay the decedent’s funeral expenses;
3. Take inventory of the estate; and
4. Distribute the assets in accordance with the will

The executor should be someone you trust to act responsibly, efficiently, and confidently.  Choosing someone who you believe is up to the task can offer you peace of mind that your wishes will be followed exactly how you want them to be.

For some, their most trusted friends and relatives may all live overseas.  In New York, it will be difficult to name one of these people as your executor.

Who Can Serve as Your Executor in New York?

There is a vast array of people who can serve as an executor in New York.  Instead, we will go over who cannot serve as an executor in New York.  New York law prevents the following people from serving as an executor:

1. Person under 18 years of age;
2. Incompetent person;
3. Non-U.S. citizens who do not live in New York;
4. Person found to be unqualified because of substance abuse, dishonesty, improvidence, or a want of understanding 

Any category of people not listed above can serve as an executor in New York, including U.S. citizens who live out-of-state or non-U.S. citizens who live in-state.  New York used to prohibit felons from serving as executors but they amended the law in 2022.  

Now it is worth mentioning that in some instances, such as with a non-U.S. citizen who does not live in New York, while they cannot be the sole-executor, they may be a co-executor.  What this means is that they can serve as an executor alongside someone else who does fit the criteria.  If you have a criteria-meeting person who would accept the role as executor then perhaps it is best not to dilute their power with an overseas relative but nevertheless, this is an option available to New Yorkers.  

Why Can’t an Overseas Relative Serve as a Sole Executor in New York?

First, I want to draw a distinction between some overseas relatives, in this case meaning a non-U.S. citizen who does not live in New York, and a relative living overseas who is a U.S. citizen.  If, for example, your sibling is a U.S. citizen and is currently living in England, then they could be eligible to serve as your executor but there are many complications that could come from appointing an executor who lives so far away.

These complications can include inefficiency throughout the process, lack of communication, or inability to complete tasks that need to be done in person.  So, while your U.S. citizenship-holding sibling who lives in England could serve, it may be best to find someone who is more local.

Some possible rationales for prohibiting non-U.S. citizens who do not live in New York from serving as executors can be logistical issues that stem from living far away from New York, potential issues getting into or out of the country, ability to quickly leave the country with assets stolen from the estate, or overall lack of familiarity with the New York probate process.  The law itself does not provide any explanation for its decision, so these potential reasons are just speculation but nevertheless, these complications could have been motivating factors when enacting these restrictions.

Possible Alternatives

Since an overseas relative who is not a U.S. citizen is not eligible to be the executor of your New York will, let’s explore some viable alternatives that you can choose to ensure your estate gets handled in the proper way.  There are many solutions available to you and we recommend consulting with an estate planning attorney to fully understand all of the options you have available to you.

Naming a Professional Executor

The first alternative we will discuss is hiring a professional executor for your estate.  They may charge an hourly fee and also take a percentage of the estate, but all executors receive a percentage of the estate as compensation for their services.  It may be worthwhile to explore exactly how much some professional executors would cost.  While your heirs may not want your estate to pay someone to act as the executor, hiring a qualified professional executor can alleviate your heirs from having to deal with the hassle of probating the will themselves.

If you hire a professional executor, you will name the professional as the executor in your will.  They will then be tasked with carrying out the probate process as any other executor would.  In the event that the named professional can no longer serve, you can either appoint someone else using a codicil, or your heirs can petition the court to change the executor if the named professional’s inability to serve is found out after passing.

Choosing Someone You Trust

Another alternative would be to choose another trusted person outright.  Remember, an executor can be anyone who fits the criteria outlined above.  It does not have to be a relative.  You can name anyone that you trust to do this job well.  Keep in mind that the named person will have a legal duty to act in the best interest of your estate.  You should look to communicate with your preferred choice before naming them in your will to make sure that they are comfortable assuming the role of executor.  Some criteria you should look for are objectivity, location, flexibility, age, and health.  A trusted person who best satisfies these characteristics would likely be a good choice.  

Setting Up a Trust

The last alternative to discuss is to create a living trust.  Similar to a will, a living trust can effectively direct your assets to your heirs upon passing.  The main difference here is that trusts do not have to pass through probate.  Not only does this mean that an executor will not be necessary to dole out the assets, but it also means that the process of transferring assets from a trust is much more efficient than it is for wills.  There will still be a need for the executor to notify creditors, pay final taxes, pay funeral expenses, and do other end-of-life duties, but the task will be much less onerous than it would have been with the use of a will instead of a trust.  Even with a trust, it may still be best to choose a trustee who lives locally to attend to some matters, but nevertheless, the process may be simpler and less intensive than the probate process with a will.

A living trust will effectively distribute your assets exactly how you want them to be distributed.  Trusts can require a larger investment to set up, as opposed to a will, but in New York a trust will likely be cheaper in the long run because the filing fee for a will in New York is upwards of $1,250, not including any legal fees or additional court fees.  It is worth noting that if you, for example, name a guardian of a minor child in your estate plan, regardless of whether you have a will or a trust, an appointment like that would still need to pass through the court.  Even with a living trust, there may be some legal matters or local matters to tend to, but ideally a living trust should mitigate these matters to some extent.

If you are seriously concerned that you do not have a viable option to serve as the executor of your will, a trust could be a viable alternative.  An experienced estate planning attorney can inform you of all of the benefits a trust can offer.

How Can Rosenblum Law Help?

At Rosenblum Law, our experienced estate planning team has assisted countless families across a wide variety of situations.  This experience can help you evaluate all of the options available to you, while carefully weighing the pros and cons of each.  We will be able to give you all of the information that you need to make the best decision for your estate plan.  For a free, no obligation consultation, give us a call at 888-235-902