The rules for who qualifies to be an executor over a foreign decedent’s estate in New York are the same as when the decedent is a US national. With foreign decedents, the issue oftentimes is that that the heirs and beneficiaries do not qualify under New York law to serve as an executor because they are foreigners themselves.
A common scenario is when a person dies with a will or assets in his home country, let’s say Spain for example. The family or nominated executor submits the will to probate court in Spain and is appointed as personal representative of the estate. However, the issue arises when the same foreign decedent also has assets in New York that need to collected by his estate.
New York banks and real estate title companies will not accept a foreign court proceeding as valid and binding to claim NY assets. In other words, if the decedent’s daughter was court appointed in Spain to serve over his estate, she cannot collect his bank account or sell real estate in NY belonging to her father without an ancillary proceeding completed in New York. This is a secondary proceeding where NY Surrogate’s Court will review the Spain proceeding and appoint a NY personal representative over NY assets. The key takeaway is that the Spain representative will mostly likely not be the same person that gets appointed as the NY executor.
Who Can be a NY Executor?
If you are the executor of an estate in a foreign jurisdiction, it does not automatically qualify you to be the executor in New York. To become an executor or administrator in NY, you must be a US citizen or a permanent resident (greencard holder). If you are a foreigner, then you cannot be an executor over a NY estate even if you are the only beneficiary in the will or the only surviving family member of the deceased.
So what is the solution?
There are a few solutions to this common situation.
First, you can ask a family member, friend or acquaintance who resides in the US and that is a US citizen or a permanent resident to become a NY executor. This is usually easier said than done because no one wants to willingly take on the huge responsibility of administering an estate if they are not inheriting from it. However, if the estate value is substantial, then they would have an interest to serve because they will earn commissions.
Commissions are based on a formula calculated by a percentage of the estate value. A considerable payment for their services can be the reason why a no quickly turns into a yes.
But you have to make sure the person is trustworthy. You are entrusting them with an estate that is probably worth a lot of money – which they will have full control over. This cannot be someone that you know has a checkered past or someone you find off the street that’s willing to do it. The person who becomes the NY executor will have all the control. They will manage the assets, collect rents, have access to bank accounts, sell real estate, and much more.
The best option in this situation is to ask a NY estate lawyer to become the executor. This is a safer choice because this type of work is in their line of business and most will not risk losing their law license over the mismanagement of an estate. A regular person may not have anything to lose, but a NY estate lawyer will have their reputation and license on the line.
Another option which is the worst option, is to ask the Surrogate’s Court to appoint a public administrator over the estate. A public administrator works for the government but hires an expensive law firm to handle the estate. With a public administrator administering the estate, you can expect long legal bills, no communication, zero control, and a big delay. The public administrator office is so backed up that it can take years to settle a straightforward estate.
Contact Us Immediately
If you are foreign beneficiary or heir, or the decedent was a foreigner, contact us immediately. Estate taxes may be owed and the longer it takes to appoint a NY executor, the more interest and penalties will due. As a NY probate lawyer, firm we deal with these matters frequently and can assist right away.
