Overlooked Change in NY Estates Law Is One Less Barrier to Reinstatement

“The restoration of voting rights in many states for those with criminal histories is an encouraging step. In the same spirit, we must educate New York families about their right to choose who will protect the generational wealth they have worked so hard to earn and leave to their loved ones.

Abigail Savitch-Lew

An empty courtroom in Brooklyn.

As a candidate for the bench in Manhattan’s Surrogate’s Court, also known as the Probate Court, I had the privilege of speaking to thousands of New Yorkers while applying to participate in the June 28 primary ballot. Typically, we would ask, “Are you a registered Democrat who votes in New York,” and sometimes someone would respond apologetically, “I can’t vote, I’m a felon.”

Many people are still unaware that this long-standing barrier to political participation has been removed. On May 4, 2021, former Governor Andrew Cuomo signed into law a law that allows people with felony convictions who are not incarcerated to register and vote.

Another significant change that should be brought to public attention is that effective October 22, 2021, “criminal” has been removed from the list of criteria that prohibited people from acting as trustees under New York’s Surrogate Court Procedure Act. Rather than a general prohibition, this legislation allows people convicted of crimes in their history to serve their sentence, while allowing the court to disqualify people in certain cases where a previous conviction was associated with fraud, embezzlement of funds or could be detrimental to the welfare of the estate.

The intent of this legislation was to allow those who have served their sentence to assume the role of trustee when dealing with the estate of a family member, particularly where the deceased has expressly requested that this no one fulfills this role. As a general rule, the Surrogate Court respects a testator’s wishes and appoints the party he has named. The fact that prior to this legislation, those convicted of a crime were unable to manage their own relatives’ property was contrary to this deference and potentially legally burdensome.

The clear line rule imposing ineligibility not only nullified the choice of the deceased, but could also result in the appointment of the public administrator, despite the existence of an immediate family willing to assume this responsibility. In addition, the appointment of the public administrator results in less assets to be distributed among the families because the expenses and fees of the public administrator are paid from the estate.

These two legislative changes — who can register to vote and participate in the political process and who can serve as an estate trustee — reflect New York’s growing need to remove barriers to reinstatement. This trend recognizes that people who have served their sentence are redeemed in the eyes of the law and can return with full rights and responsibilities.

During my law school experience as a volunteer at Lorton Reformatory and later as a volunteer for the National Lawyers Guild’s Jail Mail Project, I saw firsthand the importance of connecting with an often overlooked population. What better way to promote reintegration than to allow all the people identified by the deceased to take care of the financial and emotional needs of their family at such a critical time?

Although today’s debate on bail, sentencing and other criminal justice reform topics is of great concern, we must not lose sight of the importance of facilitating reintegration of a large population.

The restoration of voting rights in many states for those with criminal histories is an encouraging step. In the same spirit, we must educate New York families about their right to choose who will protect the generational wealth they have worked so hard to earn and leave to their loved ones.

Regardless of your political belief or model of redemption, we can all agree that in terms of voting rights and fiscal responsibility, we should encourage, not exclude, full societal participation.

Kings County Surrogate Court adjudicator Elba Rose Galvan is a candidate for New York County Surrogate Court Judge.

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