Many clients ask if they should name their attorney as the Executor of their Estates. Although this practice has been commonly accepted in New Hampshire for many years, it is not required or even recommended for most clients.
In recognition of the potential conflicts of interest which can arise when an attorney drafts a Will for a client which designates the drafting attorney (or another member of the same law firm) as an Executor, an ethics opinion clarifies the issues which need to be considered in this designation. (The same concepts apply to the designation of Trustees, Guardians, Agents and other fiduciaries.)
First, the attorney must have the requisite competence, including specific knowledge about this field of law. If you are considering the designation of your attorney as the Executor, you should confirm his or her experience in this practice area.
Second, designation of your attorney as the Executor should only be made after you have considered all available options. You should discuss whether or not your goals will be better served with the attorney as the Executor, in lieu of your family members, friends or professional fiduciaries, such as a bank or trust company. Consider the relative experience each person may have to perform the anticipated duties. Also consider if the actions of the attorney will be covered by professional liability insurance, or if the action of a professional fiduciary will be bonded. The relative costs of each choice should also be considered. Although professional fiduciaries generally publish a fee schedule for their services, New Hampshire does not have a standard commission for Executors. You should ask how your attorney will charge for services as the Executor.
Under New Hampshire law, Executor compensation is subject to Court approval. If an Estate is closed informally through a motion for summary administration, however, these fees will be subject only to the approval of the beneficiaries of the Estate. (Similarly, if the attorney is designated as a Trustee or agent, compensation is not automatically subject to Court approval, but may be reviewed by a Court if a beneficiary or other interested person objects to a proposed fee.)
The same considerations arise when the attorney is designated as a successor Executor or as a Co-Executor with a family member, friend or professional fiduciary.
Whether or not the attorney is designated as the Executor or as a Co-Executor, another attorney may be retained to represent the Estate. Most clients anticipate that the designated attorney will serve as both the Executor and counsel to the Estate, unless another attorney is needed for any reason, such as counsel to handle the ancillary administration of the Estate in another state, or when a conflict may arise between the Executor and the Estate.
In addition to potential conflicts over Executor compensation and/or attorney fees, other conflicts may arise from the designation of the attorney as the Executor, including potential conflicts with other family members who may also be clients of the attorney.
It is recommended that the attorney send you a written confirmation of your informed consent to the designation of the attorney as the Executor. In order to avoid the appearance of impropriety, the attorney may elect not to be a witness to the Will. In some cases, another attorney may be asked to handle the execution of the Will, or another notary public may be asked to acknowledge your signature.
Stricter disclosure rules will apply if an attorney solicits a designation as the Executor of your Estate. Attorneys cannot ethically include themselves as an Executor or successor Executor without your informed consent. Similarly, an attorney cannot require you to designate him or her as the Executor.
Of course, you may always execute a new Will at any time, whether or not you have previously designated your attorney as the Executor. As with all aspects of your estate plan, changes should be considered periodically as your circumstances change.