Estate, Powers and Trusts, § 11-1.10: Power of Fiduciary to Employ a Broker-Dealer as Custodian

An executor is the person named in a will by a testator to be responsible for managing the testator's estate after he or she passes away. The person who is named as the executor is a fiduciary with respect to testator’s estate. This means that when performing his or her duties of managing an estate during the process of estate administration he must act honestly, responsibly and in the best interests of the estate. In performing these duties it may be necessary and prudent for the executor to delegate and hire professionals to perform certain tasks. For example, the executor may find it prudent to hire an attorney to represent the estate in legal matters, an appraiser to asset the value of the estate property, or a financial advisor to handle investments. New York estate law § 11-1.10, specifically allows an executor to delegate to a broker the responsibility of managing investments. Because the executor of your estate will have significant power over how your assets are managed once you pass away, it is important that you name a person who is responsible and trustworthy. As you contemplate drafting your will and making the important decision concerning who will be your executor, it is important to consult an experienced New York Probate Lawyer who will educate you on the duties and responsibilities of an executor and who will make sure that your will is drafted in a manner that reflects your estate planning goals, and that is compliant with New York estate law.

1. Fiduciaries’ responsibilities: Estates, Powers and Trusts, § 11-1.1
2. Power and duty of executor before probate: Estates, Powers and Trusts, § 11-1.3
3. Payment of testamentary dispositions or distributive shares: Estates, Powers and Trusts, § 11-1.5
4. Property held as a fiduciary to be kept separate: Estates, Powers and Trusts, § 11-1.6
5. Power of fiduciary or custodian to deposit securities in a central depository: Estates, Powers and Trusts, § 11-1.9

In order to ensure that estates are managed in the most effective and efficient manner, New York allows executors to hire professionals to handle specific aspects of the management of an estate that the executor does not have the expertise or time to effectively handle personally. Thus, an executor may open investment accounts with brokers, investment advisors or bankers, transfer estate assets to those accounts, and work closely with the institutions’ investment professionals to make sure that the estate’s assets are investment and managed prudently.

It is important that when making the decision to hire someone to manage the estate’s investments that the executor selects the person or institution wisely, based solely on what is in the best interest of the estate.

Notwithstanding any other provision of law any fiduciary (as defined in § 1-2.7 or 11-1.1(a)(3)) is authorized:  (1) to employ any broker-dealer which is registered with the Securities and Exchange Commission and the department of law of the state of New York (referred to in this § as “broker”) as a custodian for a fiduciary of any stock or other securities (referred to in this § as “securities”);  (2) to register such securities in the name of such broker.  Such broker shall have the same power and shall be subject to the same restrictions with respect to the treatment of such securities as any bank or trust company acting as a custodian for a fiduciary and such securities shall be subject to the same treatment as securities held by such a custodian for a fiduciary as provided in §s 11-1.1(b)(9)(10), 11-1.6, 11-1.8, and 11-1.9 of this part.  Any such securities held by a broker in which the broker does not have a lien for indebtedness due to it from the estate or trust may not be pledged, lent, hypothecated or disposed of except upon the specific instruction of the fiduciary.

Making a will and appointing an executor is an important process that will affect how your estate is managed once you pass away. An executor’s job is more than simply distributing your assets. Your executor will be charged with the responsibility of managing and preserving your assets prior to distribution to your beneficiaries. To learn more about the process of making a will and appointing an executor contact Stephen Bilkis and Associates at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.