When the Attorney–Executor Drafted the Will: Disclosure Under 22 NYCRR 207.16(e)

Overview

New York’s Uniform Rules for the Surrogate’s Court impose a disclosure obligation when a person seeking letters as a sole executor or administrator is also an attorney admitted in New York.

When that attorney–fiduciary also drafted the will offered for probate, the disclosure must expressly say so. This disclosure requirement exists independently of — but alongside — statutory provisions governing attorney-executors who prepare wills.

This post explains what must be disclosed under the rule, how draftsmanship affects the disclosure, and how the rule relates to the governing statute.

Rule Text

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

When Draftsmanship Must Be Disclosed

22 NYCRR 207.16(e)(3) applies when the attorney–fiduciary drafted the will offered for probate. In that circumstance, the required disclosure must affirmatively state that fact.

The rule does not require explanation, justification, or court approval. It requires disclosure only.

Relationship to the Statute

When the attorney–fiduciary drafted the will, SCPA 2307-a may also be implicated. That statute governs circumstances under which an attorney who prepares a will and is named as executor must provide notices and obtain acknowledgments concerning commissions.

22 NYCRR 207.16(e) does not duplicate or replace the statute. Instead:

• the rule requires disclosure to the court at the petition stage, and
• the statute governs consequences related to commissions when the statutory disclosure acknowledgment is absent.

Compliance with one does not eliminate the need to comply with the other.

What the Rule Does — and Does Not — Do

The rule:

• requires transparency at the outset of the proceeding, and
• requires disclosure of attorney status, counsel role, and (when applicable) draftsmanship.

The rule does not:

• prohibit appointment of the attorney-executor,
• adjudicate compensation issues, or
• resolve conflicts questions.

Practical Point

When the attorney–fiduciary drafted the will, courts expect a plain, direct disclosure. Over-lawyering the statement risks obscuring the fact that the rule is procedural.

Key Takeaway

If a sole executor or administrator is a New York attorney who drafted the will, the petition must include a disclosure stating:

• that the fiduciary is an attorney,
• whether the attorney or the attorney’s firm will act as counsel, and
• that the fiduciary was the draftsperson of the will — a disclosure that exists alongside, not in place of, any statutory requirements.