Opinion
October 31, 1986
Shearman Sterling (Patricia A. Gallagher of counsel), for petitioners.
This is a petition for letters of trusteeship by three nominated cotrustees under article SIXTH of the decedent's will. One of the petitioners, the decedent's spouse, is a nondomiciliary alien while the other two are United States citizens who reside in New York and New Jersey. Under recently amended SCPA 707 (1) (c), a nondomiciliary alien is eligible in certain instances to serve as a cofiduciary together with one who "is resident in this state." While the statute has been interpreted to not encompass the receipt of letters of administration (Matter of Al-Ahmad, 133 Misc.2d 338; Estate of Browne, NYLJ, Nov. 5, 1986, p 11, col 5), no case has determined whether it applies to letters of trusteeship. A plain reading of the statute makes it clear that the Legislature intended to cover such a circumstance. Thus, if a nondomiciliary alien is nominated to serve as a trustee under the decedent's will together with a New York resident, that individual, if otherwise eligible, is entitled to serve.
With respect to the appointment of a nondomiciliary alien as a cotrustee, the statute creates other problems. In view of the fact that the nondomiciliary alien "shall serve with one or more co-fiduciaries, at least one of whom is resident in this state", the power of that fiduciary to serve as trustee ceases if the resident cotrustee moves out of State or cannot otherwise serve by reason of death or disability. If such circumstances do occur and there is no other cotrustee who is a New York resident, then the letters issued to the nondomiciliary alien are suspended until further order of the court. The letters of trusteeship which shall issue from this court shall contain the appropriate restriction.
In addition, this court further advises cotrustees who qualify under this new provision that the assets of the trust estate are to be administered here in this State. SCPA 710 (4) specifies that "No fiduciary shall remove property of the estate without the state without the proper approval of the court and upon filing a bond if required by the court."