Can a judge serve as executor of the estate of a lifelong friend who was not a relative but was treated as family?

Plain-English summary

A judge had been named executor in the simple will of a decedent the judge had known for most of the judge's life. The decedent's wife and siblings had died, he had no children, and the niece and nephews who survived him had not visited; the judge and the decedent's housekeeper were his only "anchors," and the judge had become, psychologically, the decedent's family. The judge had earlier set up an inter vivos trust for the decedent and continued as trustee after taking the bench. The judge wished to serve as executor; declining would delay administration and add expense. The estate was worth less than $300,000.

The committee analyzed Section 100.5(d) of the Judicial Conduct Rules (22 NYCRR Part 100), which mirrors Canon 5(D) of the Code of Judicial Conduct. That provision bars a judge who is not permitted to practice law from serving as executor, trustee, or other fiduciary under an instrument executed after January 1, 1974, except for the estate, trust, or person of a member of the judge's family, and only if it will not interfere with judicial duties. The rule expressly defines "members of his or her family" to include not only listed relatives but any "other relative or person with whom the judge maintains a close familial relationship," with no requirement that the person share the judge's household (unlike the federal judicial code, which requires residence in the judge's household for a non-relative).

The committee concluded that the decedent was a person with whom the judge maintained a close familial relationship over a long period, so he could be considered a member of the judge's family under the canon and the rule. It found it unlikely that serving as executor would involve the judge in proceedings that would ordinarily come before the judge, or that the estate would become involved in adversary proceedings in the judge's court or one under its appellate jurisdiction. The committee therefore concluded the judge may accept appointment as executor, and that the answer would be the same whether or not the judge was also named a beneficiary. It noted that, while acting as a fiduciary, the judge remains subject to the same restrictions on financial activities that apply in the judge's personal capacity under paragraph 2 of Canon 5(D) and Section 100.5(d).

Currency note

This opinion was issued in 1988 and interprets the New York Code of Judicial Conduct and Section 100.5(d) of the Judicial Conduct Rules as they then stood. New York substantially revised the Rules Governing Judicial Conduct (22 NYCRR Part 100) effective January 1, 1996. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a judge serve as executor for someone who is not a blood relative?

A: The committee concluded yes if the person is one with whom the judge maintains a "close familial relationship," which Section 100.5(d) and Canon 5(D) include within "members of the judge's family."

Q: Does the person have to have lived in the judge's household?

A: The committee concluded no; unlike the federal judicial code, the New York rule has no household-residence requirement for a non-relative who has a close familial relationship with the judge.

Q: Does it matter that the judge is also a beneficiary of the will?

A: The committee concluded it does not; its opinion that the judge may serve as executor was the same whether or not the judge was also named a beneficiary.

Q: What conditions still apply while the judge serves as executor?

A: The committee concluded the judge must be satisfied the role will not require involvement in proceedings before the judge or adversary proceedings in the judge's court, and that the judge remains subject to the same financial-activity restrictions that apply personally.

Background and rules framework

The opinion applied Section 100.5(d) of the Judicial Conduct Rules (22 NYCRR Part 100) and the identical Canon 5(D) of the Code of Judicial Conduct, governing a judge's service as a fiduciary, together with the financial-activity restrictions of Section 100.5(c) and Canon 5(C). The family-fiduciary exception it construes corresponds to the fiduciary-activity provisions later carried into New York's Part 100 rules and the ABA Model Code of Judicial Conduct.

Citations and references

Rules of Judicial Conduct:

• New York Judicial Conduct Rules, 22 NYCRR 100.5(d) (fiduciary activities) and 100.5(c) (financial activities); Code of Judicial Conduct Canon 5(D) and Canon 5(C) (applied in the opinion)

Other opinions cited:

• N.Y. State 240 (1972): a judge serving as executor or trustee under the former Canons of Judicial Ethics

See also

• NYC Bar Formal Op. 1988-1: Judges' Participation in Bar Association Committee Activities
• NYC Bar Formal Op. 1990-4: Volunteer Judge and Mediator Conflicts

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1988-2/