Opinion 25-02

February 6, 2025

Digest:   A full-time judge may file for letters of administration and, if granted, may appear as a pro se litigant for the administration of the judge’s deceased spouse’s estate.

Rules:    22 NYCRR 100.2; 100.2(A); 100.4(E)(1); 100.4(G); Opinions 14-03; 13-68; 03-129.

Opinion:

          A full-time judge, whose spouse died intestate and without children, asks if he/she may file for letters of administration and thereafter administer the estate pro se as the sole beneficiary.  The judge specifically asks if it is permissible to “handle all proceedings for my deceased [spouse]’s estate in Surrogate’s Court as a pro se litigant.”

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2); must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A full-time judge may serve as an executor or other fiduciary, designated by an instrument, “for the estate, trust or person of a member of the judge’s family” (22 NYCRR 100.4[E][1]).  While a full-time judge may not practice law, he/she “may act pro se and may, without compensation, give legal advice to a member of the judge's family” (22 NYCRR 100.4[G]).

          In Opinion 14-03, a full-time judge asked if he/she could “serve both as executor and as the attorney for his/her parent’s estate.”  We advised that the judge may serve as the executor of a parent’s estate and may give uncompensated legal advice to his/her parent, but “may not serve as the attorney for the estate” (see id.).  We explained that serving as attorney for the estate “would constitute the practice of law within the meaning of the Rules and is prohibited for a full-time judge” (id.; see also 22 NYCRR 100.4[G]; Opinions 13-68 [full-time judge may not serve as parent’s attorney in an eviction proceeding]; 03-129 [full-time judge may not prepare wills for relatives or immediate neighbors]).

          Here, the judge does not seek to be appointed as the attorney for his/her deceased spouse’s estate, but only to be appointed as administrator.  This is authorized under the rules (see 22 NYCRR 100.4[E][1]; Opinion 14-03).  We conclude that a judge serving as fiduciary for a deceased relative’s estate may appear without counsel in Surrogate’s Court, just as other fiduciaries, including non-attorneys, apparently do.  In effect, the judge will be “act[ing] pro se” in his/her fiduciary capacity (22 NYCRR 100.4[G]).

          Thus, we conclude the judge may file for letters of administration and, if appointed, administer the estate pro se as the sole beneficiary of his/her deceased spouse’s estate.