September 14, 1993
Digest: A full-time judge may act as an executor or executrix of the joint will for the estate of a family member and may receive compensation which is reasonable and not exceeding what a person who is not a judge would receive for the same activity.
Rules: 22 NYCRR 100.5(d).
A full-time judge asks if it is permissible to act as the executor or executrix of the joint will of a recently deceased aunt, and if permissible, can a fee for such service be accepted.
Section 100.5(d) of the Rules of the Chief Administrator, entitled “Fiduciary Activities” allows a judge to act as a fiduciary “ . . . for the estate, trust or person of a member of his or her family . . .” so long as such service does not interfere with the judge’s proper performance of judicial duties. The rule defines a family member as a “. . . spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close familial relationship . . .” Care should be taken to comply with subdivisions (1) and (2) of the rule advising against becoming involved in certain adversary proceedings and adhering to those restrictions on financial activities that regularly apply to the judge in his or her personal capacity.
It is the opinion of this Committee that the judge may serve as executor or executrix of the family member’s will and may receive a statutory executorial commission.