Formal Opinion 1988-2

March 31, 1988

ACTION: Formal Opinion

OPINION:

We have been asked whether a judge of a New York state court may serve as the executor of the estate of a decedent without violating the Code of Judicial Conduct or Section 100.5(d) of the Judicial Conduct Rules of the Chief Administrator of the Courts (22 N.Y.C.R.R. Part 100) (the “Rules”).

The decedent in his will named the inquirer executor of his estate. The will is a simple one, without any apparent problems or potential for contest. The inquirer petitioned for appointment as executor and wishes to serve. If the inquirer declined appointment, it would delay winding up the estate and create additional expense. The inquirer estimates that the value of the estate is less than $300,000.

The inquirer had known the decedent for most of the inquirer’s life. During the last decade the inquirer had become, psychologically, “family” after the decedent’s wife and siblings had all died. The decedent had no children. He had a niece and two nephews who, to the inquirer’s knowledge, never came to visit or to spend any time with the decedent. The decedent had no nearby caring friends. His housekeeper and the inquirer were his only “anchors.” In the late 1970s, while the inquirer was still in private practice and the decedent’s health began to fail, the inquirer set up an inter vivos trust at the decedent’s request which placed his assets under the control of the inquirer and a bank. After becoming a judge, the inquirer determined that it was reasonable to continue as trustee of this trust without violating the Code of Judicial Conduct or Section 100.5(d) of the Rules.

Both before and after becoming a judge, the inquirer maintained regular contact with the decedent. The inquirer and the inquirer’s spouse would frequently dine with him. The decedent sought the company of the inquirer and the inquirer’s family, particularly as the decedent’s health began to fail. The inquirer helped the decedent plan vacation trips, and the inquirer’s daughter, who at the time was 16 years old, volunteered to go with the decedent to Europe, although this planned trip was not in fact taken. The inquirer also assisted in securing the decedent additional household help and care before his final hospitalization. In addition, the inquirer helped the decedent with routine matters, such as seeing to it that his bills were paid.

Section 100.5(d) of the Rules provides as follows (underscoring supplied; italics in original):

(d) Fiduciary activities. No judge, except a judge who is permitted to practice law, shall serve as the executor, administrator, trustee, guardian or other fiduciary, designated by an instrument executed after January 1, 1974, except for the estate, trust or person of a member of his or her family, and then, only if such service will not interfere with the proper performance of judicial duties. Members of his or her family include a spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close familial relationship.

(1) A judge shall not serve as a family fiduciary if it is likely that as a fiduciary he or she will be engaged in proceedings that would ordinarily come before him or her, or if the estate, trust or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.

(2) While acting as a fiduciary, a judge is subject to the same restrictions on financial activities that apply to the judge in his or her personal capacity.

This Section, in relevant part, is identical to Canon 5(D) of the Code of Judicial Conduct.

Section 100.5(d) of the Rules and Canon 5(D) expressly except the estate or trust of a member of the judge’s family from the prohibition against serving as executor or trustee. “Members of his or her family” is expressly defined to include a person not necessarily a relative “with whom the judge maintains a close familial relationship.” There is no requirement that the person maintain the same household as the judge. * We are not aware of any judicial or other precedent that has interpreted the quoted phrase or applied it to a specific set of facts. Cf. N.Y. State 240 (1972) (a judge is not disqualified, under Canon 27 of the former Canons of Judicial Ethics, from serving as executor or trustee, provided such position does not interfere with the proper performance of his judicial duties).

* By contrast, Canon 5(D) of the Code of Judicial Conduct for United States Judges adopted by the Judicial Conference of the United States requires, in the case of a person who is not a relative, that that person must have resided in the judge’s household.

In our opinion, the decedent was a person with whom the inquirer maintained “a close familial relationship” over a long period of time and, accordingly, we believe that the decedent may be considered a member of the inquirer’s family within the meaning of the Canon and the Rules. It seems apparent that in acting as executor of the decedent’s will, it is not likely that the inquirer will be engaged in proceedings that would ordinarily come before him as a judge. It also seems likely that the estate will not become involved in adversary proceedings in the court on which the inquirer serves or one under its appellate jurisdiction. For these reasons, we have concluded that the inquirer may accept appointment as executor of the decedent’s will. Our opinion would be the same whether or not the inquirer was also named a beneficiary under the will.

Finally, we note that paragraph 2 of Canon 5(D) and Section 100.5(d) of the Rules provides that a judge, while acting as a fiduciary, is subject to the same restrictions on financial activities that apply to the judge in his personal capacity (see Section 100.5(c) of the Rules and Canon 5(C)). The inquirer must, of course, be satisfied that, as executor, full compliance will be made with these requirements.