When the Attorney–Executor Did Not Draft the Will: Disclosure Under 22 NYCRR 207.16(e)

Overview

An attorney who seeks appointment as sole executor in New York must comply with a disclosure rule even if the attorney did not draft the will.

The absence of draftsmanship does not eliminate the obligation to file a disclosure statement. It only affects what the disclosure must say.

Rule Text

The full text of 22 NYCRR 207.16(e) is here: 22 NYCRR 207.16(e): Attorney–Fiduciary Disclosure Requirement.

When the Rule Applies

22 NYCRR 207.16(e) requires a disclosure whenever:

• the petitioner seeks letters as sole fiduciary, and
• the petitioner is an attorney admitted in New York.

The disclosure addresses three topics:

1. attorney status,
2. whether the attorney or the attorney’s firm will act as counsel, and
3. if applicable, draftsmanship.

What “If Applicable” Means

Subdivision (3) applies only if the attorney drafted the will. When the attorney did not draft the will, best practice is to say so expressly.

Silence can create ambiguity. A simple negative statement resolves the issue cleanly.

What the Rule Does Not Do

The rule does not:

• infer draftsmanship,
• shift burdens, or
• impose additional obligations when the attorney did not prepare the will.

Its function is disclosure, not regulation.

Practical Point

Courts and clerks generally expect an attorney–fiduciary disclosure even when draftsmanship is not involved. The disclosure is still mandatory; it is simply shorter.

Key Takeaway

If the sole fiduciary is an attorney who did not draft the will, the disclosure must still be filed and should affirmatively state that the attorney was not the draftsperson.