A Parent Can Name Ex-Felon Son as Executor, Power of Attorney & Fiduciary

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Planning & Elder Care Attorney

My client is updating her estate planning. She’s 60 and divorced. At age 19 her son was convicted of a felony and spent a year in prison. Twenty years later he’s responsible, trustworthy, has a job and a family. She wants to name him personal representative under her will and power of attorney. However, friends tell her he can’t serve because of that conviction. He is her only beneficiary with no meaningful next of kin, so he wouldn’t be responsible for anyone else’s funds. Can she get around this?

New Jersey statutes are clear: An individual who has been convicted of a felony may serve as a personal representative. The number of years that has elapsed since conviction is immaterial. Even though her son is her only heir, and her estate planning does not include any other beneficiaries, the state does not limit a former felon’s eligibility. Other states have laws designed to protect not just other beneficiaries, but also creditors who may have claims on your estate. That’s why a felon can’t serve in those states.

At this juncture, I recommended that my client talk with her son to discuss who else might serve as a personal representative. Alternatively, a lawyer could help the son apply for an expungement. If obtained, the judgement would further enable him to act as his mom’s personal representative. An expungement might also help her son get jobs currently not available to him because of the past conviction.

To discuss your NJ Estate Planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.