• 21
  • March
    2011

A recent article in the Star-Ledger discussed the problems a convicted felon could potentially face in acting as the executor of a will.

In short, while there are not, in New Jersey, any laws to prevent a convicted felon from serving as an executor, there may be some practical matters that could prevent a convicted felon from effectively serving as an executor of a will

One potential hurdle is purchasing probate bonds. In order to serve as an executor, the executor will need to purchase post bond, unless the will waives the bond requirement. The purpose of probate bonds is to assure the court, heirs to the estate and creditors that all the will's terms will be carried out accurately and with due diligence.

Usually, the bonding company will ask the applicant if he/she has ever been convicted of a felony and to provide the details of any convictions. Depending on the bonding company and their willingness to issue a bond in that case, a convicted felon may be unable to qualify as executor.

There could be difficulties if the executor is still in jail. A convicted felon still in prison may, for instance, have difficulties getting access to decedent's financial records or safe deposit box. They may have trouble carrying out communications with financial institutions where the decedent has accounts. Other executorial duties, like selling real estate, filing tax returns and procuring property appraisals, may be difficult as well.

The inability or difficulty to carry out the functions of an executor shouldn't be taken lightly. If an executor fails to carry out the terms of a will, beneficiaries may bring an action to remove the executor for cause. State statutes define the circumstances under which an executor may be removed. These situations included those where the executor embezzles, wastes or misapplies any portion of the estate, or when the executor abuses the position of trust in which he has been placed.

Other grounds are neglect or refusal to perform duties, refusal to obey a court order or failure to file an inventory or accounting of the estate with the court. Executors can also face accusations of breach of fiduciary duty by beneficiaries.

Generally, actions may not be brought within six months of appointment, during which time executors ought to be careful about organizing the estate and ensuring they are able to fulfill all executorial duties.

It is important, when one is setting up one's will, to select an executor who is trustworthy and capable of fulfilling the terms of your will. Convicted felons, even if they are near and dear to you, may not be the best people to execute your will.

Source: Star Ledger, "Convicted felons may struggle to execute wills," Karin Price Mueller, 15 Mar 2011.