Most commonly a family member is chosen to serve as executor to administer an estate, or to serve as trustee to hold and manage funds for a beneficiary over a longer term. Sometimes a bank or an attorney is chosen as executor or trustee.
Such a choice may be made when the person making a Will has a concern as to whether the family members could manage the responsibility for the estate, or there are concerns as to whether there would be disputes regarding the estate.
All executors and trustees are entitled to receive commissions from the estate for performing the services as an executor or trustee, according to a schedule under New Jersey law.
If the attorney who prepares the Will or who otherwise represents the person is named as executor or trustee, then there may be a claim that the attorney has acted under a conflict of interest.
Pursuant to an New Jersey ethics opinion, it is not unethical for an attorney who prepared a Will to name the attorney in the document as executor or trustee, but the attorney is required to make adequate disclosure to the client.
Because of the possibility of a later claim of a conflict of interest, the attorney should prepare a statement to be signed by the client to set forth the disclosures which have been made to the client.
If a person dies without a will, then the estate will be administered by an "administrator". This person has the same responsibility as an executor, but has a different title, because the person has not been named in a will. The closest family members may decide to serve as administrator, or may select an attorney to fulfill these responsibilities.
An attorney who serves as executor, administrator or trustee will have certain advantages of not being involved in the family, and having some measure of objectivity. The attorney should also be sensitive to particular family issues, such as the distribution of tangible personal items of sentimental value.