Continuing in Roles of Executor and Trustee After Appointment to the Bench

November 10, 2005

CJE Opinion No. 2005-9


You have requested advice with respect to whether the Code of Judicial Conduct permits you to continue to serve as the executor of a certain estate and trustee of a related trust after you are sworn in as a judge. In connection with your request, you have furnished the committee with a detailed account of your relationship with the decedent. The decedent was not your family member per se, but was a person you knew for many years before his death approximately two and one-half years ago.

Two provisions of the Code are of primary relevance to your request. First, Section 4 E provides in pertinent part as follows: "A judge shall not serve as an executor, administrator, trustee, guardian, or other fiduciary, except for the estate, trust, or person of the judge's spouse, domestic partner, child, grandchild, parent, or grandparent, as well as another relative or person with whom the judge maintains a close familial relationship." The committee has, on three occasions, opined on the meaning of the phrase "close familial relationship" as it appeared in Canon 5 (D) of an earlier (pre-October 1, 2003) version of the Code. See CJE Opinion Nos. 97-3, 2000-2, and 2003-3. Predictably, the meaning of the phrase is highly fact specific. Whether your relationship with the decedent qualifies as a "close familial relationship" is a question the committee, in the interest of providing you with a prompt reply to your request, does not answer at the present time.

Section 6 B is the second provision of the Code relevant to your request, and it provides in pertinent part as follows: "A person to whom [the] Code becomes applicable shall comply immediately with all its provisions except Section[] . . . 4E and shall comply with [that] Section[] as soon as reasonably possible and in any event within one year." Under the Code, then, even if your relationship with the decedent does not qualify as the type of "close familial relationship" that would permit you to remain the estate's executor and trustee indefinitely, Section 6 B permits you to remain in these roles for a reasonable amount of time not to exceed one year. Where you indicate in your letter that there are only a few steps that remain to be taken to wind up the affairs of the estate, and you anticipate that you can accomplish those tasks reasonably quickly, Section 6 B allows you to remain as fiduciary while you promptly complete those steps and wrap us the estate's business. Requiring someone else to take over the role of executor and trustee to carry out these tasks at this late stage of the proceedings could cause unnecessary delay and added expense for the estate. (An individual who presently serves as your coexecutor and co-trustee is not located in Massachusetts and has not been actively involved in the affairs of the estate to date.)

Section 4 H (1) of the Code permits you to receive reasonable compensation for your services as fiduciary during this windup period, within the limits that Section 4 H (1) contains, but you must report the compensation in accordance with Section 4 H (2). After you are sworn in you may also accept payment of compensation for services rendered as executor and trustee before your judicial appointment, although prudence dictates that such compensation should also comport with the requirements of Section 4 H. Moreover, during the course of your continued service as executor and trustee you would be bound by the provisions of Section 4 A concerning a judge's extrajudicial activities and Section 4 G dealing with the practice of law.

In the interest of providing you with a prompt answer to your request, therefore, the committee advises that you may continue to serve as executor of the estate and trustee of the trust under the provisions of Section 6 B. If you can wind up the affairs of the estate within a reasonable period not to exceed one year, there will be no need to consider whether your service also would comply with the provisions of Section 4 E. If you do not believe that you will be able to conclude the estate's affairs within that period, the Committee would be pleased to consider the application of Section 4 E to the relationship your letter describes.