Can a Felon Serve as Executor or Administrator in New York?

By Albert Goodwin, Esq., Law Offices of Albert Goodwin. Attorney Albert Goodwin practices estate and Surrogate's Court law in New York City, Brooklyn, Queens and throughout New York State.

The Short Answer

Under New York law, a person convicted of a felony cannot receive letters testamentary or letters of administration. The bar comes from SCPA § 707(1)(d), and Surrogates apply it as written. The dependable way to remove it is a Certificate of Relief from Disabilities or a Certificate of Good Conduct under Article 23 of the Correction Law. If you cannot get a certificate in time, someone else can serve while you keep every right you have as a beneficiary.

What SCPA § 707 Says

SCPA § 707 lists the people to whom the Surrogate's Court may not issue letters. The list includes infants (people under 18), incompetents, certain non-domiciliary aliens, and "a felon." A separate subsection, § 707(1)(e), disqualifies anyone the court finds unfit because of substance abuse, dishonesty, improvidence, want of understanding, or who is "otherwise unfit for the execution of the office."

The two grounds work differently:

• The felony ground, § 707(1)(d): This is a status-based bar. If you have a felony conviction and no certificate removing the disability, the court cannot appoint you. It does not matter how old the conviction is, whether it involved violence, or whether every other family member wants you to serve.
• The unfitness ground, § 707(1)(e): This is discretionary, and it only works in one direction. It lets the court reject someone who is otherwise eligible. It does not give the court power to appoint someone the felony ground excludes.

Some older advice suggests you can skip the certificate and ask the judge to find you fit anyway. That is not a reliable path. Without a certificate, you should plan on the court treating the felony bar as mandatory.

The bar applies to every fiduciary office the Surrogate's Court grants: executor, administrator, administrator c.t.a., temporary administrator, and testamentary trustee. The probate and administration petitions ask whether the proposed fiduciary is a felon, so the conviction has to be disclosed. It will not simply go unnoticed.

What Counts as a Felony

New York defines a felony as an offense for which a sentence of more than one year in prison may be imposed (Penal Law § 10.00(5)). A few points come up often in our practice:

• Misdemeanors and violations: These do not trigger § 707(1)(d). The court can still consider the underlying conduct under the unfitness ground, especially if it involved theft or fraud.
• Youthful offender adjudications: A youthful offender finding replaces the conviction and is not a judgment of conviction (CPL § 720.35), so it generally does not count as a felony for this purpose.
• Felonies reduced by plea: What matters is the offense of conviction, not the original charge. A felony arrest resolved by a misdemeanor plea is not a felony conviction.
• Sealed convictions: Sealing under CPL § 160.59 or the Clean Slate Act limits who can see a record. It does not reverse the conviction. Do not assume sealing removes the § 707 bar. Get advice on your specific record before you file.

Federal, Out-of-State and Foreign Convictions

Section 707 says "a felon" and does not limit the term to New York convictions. A federal felony conviction, or a conviction in another state, is usually treated as disqualifying. The harder question arises when the other jurisdiction calls something a felony that New York would treat as a misdemeanor, or the reverse. Courts generally ask whether the conduct would amount to a felony under New York law. In criminal sentencing, New York compares the elements of the foreign offense with the closest New York crime (Penal Law § 70.06(1)(b)(i); People v. Muniz, 74 N.Y.2d 464 (1989)). Practitioners often use a similar comparison when a § 707 question involves an out-of-state or foreign conviction. Results can turn on the exact statute of conviction, so obtain the charging documents and judgment from the other jurisdiction before you file anything.

How a Certificate Removes the Bar

Correction Law § 701 allows a Certificate of Relief from Disabilities to relieve "any forfeiture or disability" automatically imposed by law because of a conviction. Ineligibility to serve as a fiduciary under SCPA § 707(1)(d) is that kind of automatic disability. A Certificate of Good Conduct under § 703-a has the same effect. Once you hold a valid certificate that covers the disability, you are no longer barred as a felon. Attach a copy to your petition.

A certificate does not erase the conviction. Correction Law § 701(3) preserves a decision-maker's power to rely on the conviction when exercising discretion. In practice, the Surrogate can still look at the underlying facts under the unfitness ground. If your conviction was for embezzlement, identity theft or fraud, expect closer questioning, and possibly a bond requirement or objections from other family members. An old drug or assault conviction followed by years of stable work usually draws less concern.

A certificate can be general or limited to specific disabilities. When you apply, ask that it cover all disabilities, or at least the right to serve as a fiduciary.

Certificate of Relief vs. Certificate of Good Conduct

Who Is an "Eligible Offender"

Correction Law § 700 defines an eligible offender as someone who has not been convicted of more than one felony. The statute also counts certain multiple convictions as a single conviction:

• Crimes committed through a single act, or where one crime was a material element of the other.
• Crimes charged in separate counts of one indictment or information.
• Crimes charged in two or more indictments or informations filed in the same court before judgment was entered on any of them.

A person who pleaded to two felony counts in one case may therefore still qualify for a Certificate of Relief. If you clearly have two separate felony convictions, you need a Certificate of Good Conduct and must satisfy the waiting period in § 703-b.

Who Processes Applications

The Division of Parole merged into the Department of Corrections and Community Supervision (DOCCS) in 2011. Applications that used to go to the Board of Parole are now processed by DOCCS. Application forms and instructions are on the DOCCS website. If your sentence did not include state prison, apply to the judge who sentenced you, or to that court, for a Certificate of Relief. That is often faster than going through DOCCS.

Both issuers look at the same kinds of evidence:

• The nature of the offense and how long ago it happened
• Completion of the sentence and any program requirements
• Employment history
• Family responsibilities
• Letters of reference
• Whether you have stayed out of trouble since

Submit the application with a short statement explaining that you need the certificate to serve as fiduciary of a relative's estate.

A Practical Timeline

1. Get your records: Order a Certificate of Disposition from the clerk of each court where you were convicted. For federal or out-of-state cases, get the judgment and charging document. Confirm the class of each felony and the date your sentence ended.
2. Decide which certificate applies: One felony, or multiple convictions that count as one, points to a Certificate of Relief. Two or more separate felonies point to a Certificate of Good Conduct, so check the waiting period.
3. Apply: File with the sentencing court or with DOCCS. DOCCS reviews can take several months or longer. Court applications vary by county and judge.
4. Protect the estate while you wait: If assets need attention now, ask the court for temporary letters for someone else (see the next section).
5. File the petition: Once the certificate issues, file a probate petition (if there is a will) or an administration petition (if there is not). Attach the certificate and disclose the conviction.
6. Answer any questions from the court: The court may ask about the conviction, require a bond, or schedule a hearing if a family member objects under the unfitness ground.
7. Receive letters: After the court signs the decree and you file your oath and designation, you receive letters testamentary or letters of administration. If a temporary administrator was serving, that person accounts and turns the assets over to you.

Keeping the Estate Moving While a Certificate Is Pending

Families often get stuck at this point. A house needs insurance, a co-op board wants maintenance paid, a bank account is frozen, or a tenant has stopped paying rent. Nobody can act until someone holds letters. New York offers two short-term tools.

Temporary Administration (SCPA Article 9)

Under SCPA §§ 901–903, the Surrogate can appoint a temporary administrator when there is a delay in granting full letters, or when an estate needs protection. Under § 902, the court has broad discretion in choosing whom to appoint. Common choices are another family member, an attorney, or the Public Administrator or county Chief Fiscal Officer. The order can limit what the temporary administrator may do, for example to collecting assets, paying insurance and carrying costs, and preserving property, without selling anything or making distributions. When you later qualify, the temporary administrator accounts to you or to the court and steps aside.

The person seeking a certificate cannot be the temporary administrator. The felony bar applies to temporary letters too.

Preliminary Letters Testamentary (SCPA § 1412)

Where there is a will, a named executor can ask for preliminary letters while probate is pending. If you are the named executor and you are barred, you cannot receive them. A named successor or co-executor who is eligible can apply, which keeps the estate running while your certificate is processed.

If You Cannot or Do Not Want to Wait

Sometimes the certificate will take too long, the waiting period has not run, or the estate is simple enough that it makes more sense for someone else to serve. These are the usual alternatives.

A Successor or Co-Executor Named in the Will

If the will names a successor or co-executor, that person can petition. You can sign a renunciation, a short form filed with the court, so the case moves faster. Renouncing in one estate is not a finding against you and has no effect on your inheritance.

Administrator c.t.a.

If no named executor can serve, the court appoints an administrator c.t.a. (administrator with the will annexed). Priority generally goes to the residuary beneficiaries under SCPA § 1418, so another beneficiary can step in.

Another Distributee, When There Is No Will

In an intestate estate, SCPA § 1001 sets the order of priority among distributees. If you are first in line but barred, the next eligible distributee can petition. Distributees can join together in asking the court to appoint a particular person, such as a sibling or an attorney. The court is not bound by that request but often gives it weight. When an administrator dies or resigns partway through, the court issues letters of administration de bonis non to finish the work; see our page on administrator d.b.n. appointments.

An Attorney as Fiduciary

When no family member is eligible or willing, an attorney can serve. An attorney-fiduciary is paid statutory commissions like any other fiduciary, may need a bond, and accounts to the court and the beneficiaries.

The Public Administrator or Chief Fiscal Officer

Not every county has a Public Administrator. The five New York City counties (New York, Kings, Queens, Bronx and Richmond) have one under SCPA Article 11. So do a few others, including Nassau, Suffolk and Westchester. In most other counties, the county's Chief Fiscal Officer, usually the County Treasurer, administers estates under SCPA Article 12 when no one else is eligible. These offices charge statutory fees and generally use outside counsel, so the estate pays for their work. They usually become involved only when no eligible family member or other suitable person comes forward.

Your Rights as a Beneficiary Are Not Affected

A felony conviction affects whether you can serve. It does not affect whether you inherit. Nothing in the Estates, Powers and Trusts Law reduces a beneficiary's or distributee's share because of a criminal record. The one exception is the long-standing rule that a person who wrongfully kills the decedent may not profit from the death.

As a beneficiary or distributee, you keep the right to:

• Receive notice of the probate or administration proceeding and object to the will or to the proposed fiduciary.
• Sign or refuse to sign waivers and consents.
• Ask the court to compel the fiduciary to account (SCPA § 2205) and file objections to the account.
• Petition to remove a fiduciary who mismanages the estate (SCPA § 711). See our page on removing an administrator.

If you choose not to pursue a certificate, you are still a full participant in the estate.

Illustrative Example

The following is a hypothetical that reflects a common pattern. It does not describe a specific client or outcome.

A woman in Queens dies without a will. Her only child, her son, has one Class D felony conviction from fifteen years ago. He served probation and has worked steadily since. Her apartment is a co-op with monthly maintenance due, and the board is threatening action. Because he has one felony and his sentence did not include state prison, he is an eligible offender and can apply to the sentencing court for a Certificate of Relief. While that application is pending, his cousin petitions for temporary letters limited to paying maintenance and insurance from the decedent's bank account. When the certificate issues, the son files an administration petition with the certificate attached, discloses the conviction, and asks to be appointed. The cousin accounts for the limited funds she handled and is discharged.

With two separate felonies and a Class B conviction among them, the same son would face a five-year waiting period for a Certificate of Good Conduct. Asking the cousin or an attorney to take full letters might then be the better choice.

Talk to a New York Estate Attorney

The right approach depends on your conviction record, how urgently the estate needs attention, and where the other family members stand. We can review your Certificate of Disposition, tell you which certificate applies, and coordinate temporary letters so the estate is protected while you apply.

Call the Law Offices of Albert Goodwin at 212-233-1233 or email email@nyestateslawyer.com. We have offices in New York City, Brooklyn and Queens and handle Surrogate's Court matters throughout New York State.

This page provides general information about New York law and is not legal advice for any particular situation.