BILL NUMBER: S8983

SPONSOR: MYRIE
 
TITLE OF BILL:

An act to amend the surrogate's court procedure act, in relation to
removing the prohibition on individuals convicted of a felony that
prevents them from being appointed fiduciary of an estate

 
PURPOSE:

The intent of this legislation is to allow those who have served their
sentence the ability to become executor or executrix of an estate,
including and especially the estate of a family member. Current law
prevents anyone convicted of a felony from becoming a fiduciary of an
estate, even if the deceased parent/family member(s) have named such an
individual executor to the position. This legislation preserves the
discretion of a court to deny appointment in cases where the prior
conviction was associated with fraud, embezzlement or where crime may be
adverse to the welfare of the estate. Additionally, current law states
that an individual can be declared ineligible if that individual is
unable to read or write the English language. This legislation gives the
              

court the option of appointing a certified court interpreter to assist
such a person.

 
SUMMARY OF PROVISIONS:

  Section  1.  Paragraphs (d) and (e) of subdivision 1 and subdivision 2
of section 707 of the surrogate court procedure act,  paragraph  (e)  as
amended by chapter 514 of the laws of 1993, are amended and a new subdi-
vision 3 is added.

Interpreter.  Upon request of a person subject to the court's discretion
under subdivision two of this section, the court shall provide an inter-
preter to translate the testimony of any person who does not  speak  the
English language well enough to be readily understood.

  Section 2. This act shall take effect immediately.

 
JUSTIFICATION:

It  is  important for persons preparing their Will and Trust to have the
right to nominate the person they want to act as executor, executrix  or
trustee.  In  most  instances the court respects the choices made by the
creator of the document and appoints the nominated  parties.  This  bill
honors  the  rights  and  feelings  of grieving families by allowing the
individual they choose to act as the executor or trustee  of  an  estate
even  though  that  person may have a felony conviction when that person
has paid their debt to society.  State laws govern probate and surrogate
courts, not federal law, so the rules can vary a great deal from  juris-
diction to jurisdiction.

For example, in New Jersey and Oregon, there are no laws stating that an
individual  convicted  of a felony can't serve as executor of an estate.
In New Jersey, this applies even if the named executor is still in  jail
when  the  testator dies. In other states, such as Illinois and New York
the law specifically states that an individual  convicted  of  a  felony
can't serve under any circumstances.

Courts  may be more likely to remove an executor or bar that person from
taking office if the nature of the crime may be adverse to  the  welfare
of the estate. For example, if the conviction was for embezzlement, this
might  raise  concerns about permitting the executor to be involved with
the  estate's finances. If the conviction was drug-related and had noth-
ing to do with misappropriation of money, a court would be permitted  to
make the appointment nonetheless.

The country has become increasingly multicultural. The fact that certain
individuals  with language barriers are excluded from being appointed as
a fiduciary, especially in New York State is simply unjust. It  is  only
fair to those of different ethnic and cultural backgrounds and those who
wish  to  have  them  act  as fiduciaries to allow a court to appoint an
interpreter to overcome any language barriers they may have.  Additional
legislation should be considered to make further changes to this section
of the law.

 
LEGISLATIVE HISTORY:

This is new legislation.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.