Serving as executor for non-relative

January 13, 2004

Opinion 2004-1

Dear Assistant Register:

This letter is in response to your inquiry of December 10, 2003. You requested the Committee's opinion as to whether you may serve as executrix for an aunt. You currently hold the position of Assistant Register.

The relevant facts you provided are as follows: this aunt is the ex-wife of your maternal uncle. When you were a youth, your family celebrated numerous holidays at the home of your uncle and aunt. After their divorce, you kept in touch with this aunt and have always referred to her as your aunt. When your mother died this aunt attended your mother's memorial service and you have recently attended the funerals of your aunt's second husband and son. You visit your aunt several times a year, and during the past year, you have been in weekly contact with her. You work at a Probate Court in a different county than the county where your aunt currently lives.

It is the Committee's opinion that you may be named and serve as executrix under the will of this aunt. The factual background you have provided has satisfied the definition of "close familial relationship" required by Canon 5(D)(1). This Canon permits a Clerk to serve in a fiduciary capacity for a member of his or her family, or "other relative or person with whom the Clerk-Magistrate maintains or maintained a close familial relationship". In addition, Canon 5(D)(1)(a) provides that a Clerk-Magistrate shall not serve in any fiduciary capacity if it is likely that as a fiduciary the Clerk-Magistrate will be engaged in proceedings that would ordinarily come before the Clerk-Magistrate in a decision-making capacity. Since you work in a different county than the county where your aunt lives, it would seem unlikely that there would be any conflict with your official duties. We point out that Canon 5(D)(1)(a) would require you to resign as executrix if the estate "becomes involved in adversary proceedings in the court in which [you are] serving." In conclusion, it is the opinion of the Committee that Canon 5(D)(1)would allow you to serve as executrix under the will of your aunt because you have maintained a "close familial relationship" and because the probate of your aunt's will would be in a different county than the one where you serve as an Assistant Register.