Serving as Executor for Long-term Friend

November 12, 2008

In 2005, you requested advice from the Committee regarding your ability to continue your service as the executor of an estate after you were sworn in as a judge. The estate was created by the death of a person with whom you had had a long relationship but who was not related to you by blood or marriage. The Committee said that you could continue as an executor under the provisions of §6B of the Code of Judicial Conduct which allow a person who is serving as the executor of an estate to continue serving for a reasonable period of time not to exceed one year after he or she is sworn in as a judge.

The Committee closed its opinion by saying "[i]f 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 would comply with the provisions of Section 4E [of the Code], which permits a judge to serve as an executor and trustee of the estate and related trusts '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.'] 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 4E to the relationship" your request described. CJE Opinion 2005-9.

As it turned out, you were unable to close out the affairs of the estate and related trust by the first anniversary of your swearing in. As a consequence, you have asked the Committee to look anew at whether the decedent and you maintained "a close familial relationship" such that you could continue as an executor and trustee under the provisions of Section 4E.

Your written request for advice contains the following essential facts. You first met the decedent when, as a college junior, you took a course he was offering. The next year he supervised your senior thesis. After graduating from college, you entered the Armed Forces and corresponded regularly with the decedent while you were serving.

After leaving the Armed Forces and returning to law school, the decedent hired you as his research assistant and together you wrote an article that was published in 1961. The following year while he was recovering from major surgery, the decedent asked you to ensure that his automobile was properly garaged. You undertook to do so at what turned out to be some considerable cost to yourself. After you began your professional career, you and the decedent maintained your close friendship and, on at least one occasion, he requested advice which you supplied to him.

Over the years, you and the decedent maintained your relationship. He sought your advice on various matters and you referred him to attorneys who were competent to give that advice. More important, for present purposes, you loaned him a vacation house which he used, visited him in the aftermath of major surgery and invited him as one of the non-family guests to your future wife's birthday party and ultimately to your wedding. For the eight years before his death, the decedent lived six blocks from you, met with you regularly, spoke to you on the telephone frequently and dined with you occasionally.

The decedent was fifteen years your senior. He never married and, at his death, his only relatives were nieces, nephews and their children. You characterize your relationship as analogous to the relationship between an uncle and nephew or disparately-aged cousins.

At the time of the decedent's death you began serving as a co-trustee and co-executor of the decedent's estate. The terms of the decedent's will transferred all of his possessions to the trust and, although there is a co-trustee, he or she is geographically far removed from Massachusetts, with the consequence that you alone performed most of the tasks involved in winding up the estate. Apparently, much of the estate is to go to a charity and the remaining matters requiring your attention are preparation of the probate inventory; attending to its allowance; preparing the trust account; and attending to approval of the account by the charity, the Attorney General and possibly a court. You do not anticipate that anyone will object to the disposition of the trust assets or that any litigation will be involved in completing your duties.

 As noted earlier, Section 4E of the Code permits a judge to serve as an executor and trustee of the estate and related trust "of [a] person with whom the judge maintains a close familial relationship." The relevant question here is whether your relationship with the decedent was "a close familial relationship," as that term is used in the Code. In the Committee's view, it was.

The Committee dealt with similar issues in CJE Opinions 97-3, 00-2 end 03-3. In each of those opinions, the Committee recognized that the question of "close familial relationship" was inherently fact driven and susceptible to no single overarching test or criterion. Accordingly, we followed the lead of the Court of Judicial Discipline of Pennsylvania in the case of In re Horgos, 682 A.2d 447, 451-452 (Pa. Ct. Jud. Disc. 1996) distinguished mere friendship from a close familial relationship by considering eight factors: "(1) intimacy of address, (2) recognition by others of a close relationship, (3) shared meals, (4) frequent contact either by phone or in-person, (5) shared holidays, (6) shared family events, (7) assistance with physical, medical, legal or emotional needs, and (8) longevity [of the relationship]." The Committee noted, however, that the presence of fewer than all of the factors would suffice where "the essence of the relationship [was] nurturing." See also Indiana Commission of Judicial Qualifications Advisory Opinion #5-89.

Consideration of those criteria leads the Committee to conclude that your relationship with the decedent qualifies as a close familial relationship principally because of the absence of other relatives beyond nieces, nephews and their progeny; the longevity of your relationship; your regular interaction with the decedent by telephone and in person while he was alive; the nurture and support you gave to him during his illnesses and rehabilitation; your inclusion of him in important family gatherings; and your allowing him to share your vacation home.

From that conclusion, it follows that Section 4E of the Code permits you to continue as the estate's executor and trustee of the trust and, in accordance with Section 4H(1), to collect a reasonable fee for your services, provided that you report the fee as required by Section 4H(2). You should be aware, however, that you are prohibited by Section 4G from practicing law, by court appearances or otherwise, during the course of your service and that you must terminate your services if the estate or trust becomes "involved in adversary proceedings in the court on which [you] serve." Section 4E(2).