I can’t help but chuckle when a client nervously asks me if it is difficult being the “executioner” of a will. This faux pas happens every now and then in my practice. My response is swift: “I would find it extremely difficult being an ‘executioner’; I couldn’t hurt a soul. But, being appointed the executor under a will is quite a different story, and can be very rewarding.”
Clients often consult with my firm to seek advice regarding an elderly spouse, parent or relative. At the outset of the consultation, a client may state that the individual’s presence at the meeting is not necessary because he is appointed “executor” of the individual’s estate. Similarly, a client often retains our services to administer or probate the estate of a loved one who has recently died. A typical remark is that the client is able to act on behalf of the decedent (deceased individual) because he was named power of attorney or “attorney in fact” of the individual during his lifetime. Confusion clearly exists regarding the definitions and very different roles of an executor and an attorney in fact.
An attorney in fact is someone who is appointed by an individual to act on his behalf with respect to various financial matters. This appointment is made by the individual in a power of attorney. Durable powers of attorney are often used in order to effectively plan for someone’s potential future incapacity. A “durable” power of attorney is a power that survives the individual’s incapacity. The power of attorney is valid and usable only during the individual’s lifetime. Accordingly, when someone dies, his power of attorney becomes null and void and the attorney in fact is no longer able to act on his behalf.
On the other hand, an executor is someone who is appointed by an individual to carry out the individual’s wishes regarding the distribution of his assets upon his death. The appointment of an executor is made in the individual’s last will and testament. Unlike an attorney in fact, the executor’s role does not begin until the testator’s demise and upon the issuance of “letters testamentary” by the Surrogate’s Court. The executor has absolutely no power to act on behalf of an individual during his lifetime. An individual can change the executor in his will simply by signing another will or adding a codicil to his existing will.
Being the executor of the estate comes with a host of responsibilities. The executor must initiate the estate administration process by petitioning the Surrogate’s Court in the county in which the decedent resided. This work is usually handled by an attorney who is well versed in estate administration matters. Both an executor and an attorney in fact are “fiduciaries.” As such, they both must act in good faith, with loyalty and with trust, and can not put their personal interests before the interests of the individual who appointed them.
While the roles of an attorney in fact and executor come into play at completely different times—one during life and one after death—the documents appointing such individuals—the power of attorney and will—are critical parts of an individual’s comprehensive estate plan.
Ronald Fatoullah is the principal attorney and founder of Ronald Fatoullah & Associates, a law firm concentrating in the fields of elder law and estate planning. He serves on the board of directors and as Chairperson of the Legal committee of the Long Island Alzheimer’s Association, and he is a co-founder and board member of The Senior Umbrella Network of Queens. Mr. Fatoullah has been selected as one of “The New York Area’s Best Lawyers,” as seen in New York Magazine, in the fields of elder law and estate planning. The firm’s offices are conveniently located in Queens, Long Island and Brooklyn. For further information, call toll free 1-877-ELDER LAW or 1-877-ESTATES. This article was written with the assistance of Debby Rosenfeld, Esq.,a senior staff attorney at the firm.
