Request By:
Mr. Richard A. Turner
State Representative
22nd District
Capitol Building
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request the opinion of this office regarding the possible existence of any impropriety or conflict when a circuit judge becomes an executor of an estate and charges a fee for doing so.
KRS 26A.015(2) provides in part that any judge of the court of justice shall disqualify himself in any proceeding:
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"(c) Where he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a pecuniary or proprietary interest in the subject matter in controversy or in a party to the proceeding;
Under KRS 26A.015(1)(b) "fiduciary" includes such relationships as executor, administrator, trustee, and guardian.
The district court has exclusive jurisdiction of the administration of estates, except matters contested in an adversary proceeding, which proceedings must be filed in circuit court. KRS 24A.120(1)(b). See KRS 394.140, concerning a will being probated in district court.
To serve as executor only of an estate (will) does not involve the practice of law. Section 123 of the Kentucky Constitution prohibits a circuit judge from engaging in the practice of law or running for elective office other than judicial office, or from holding any office in a political party or organization.
KRS 395.001 defines "fiduciary" in part as a person, association, or corporation appointed by, or under the control of, or accountable to, the district court, including executors, administrators, etc.
The qualifications of a fiduciary are set forth in KRS 395.005:
"The following persons may be appointed as fiduciary:
"(1) Any resident of the state of Kentucky, over eighteen (18) years of age, except as set out in KRS 395.080, and any national bank located in Kentucky having fiduciary powers and any state bank or trust company incorporated under the laws of the state of Kentucky and authorized by law to act as fiduciary.
"(2) Any nonresident of legal age who is as to the decedent, ward, or incompetent, related by consanguinity, marriage, adoption or the spouse of such person so related."
We see no impropriety nor conflict in connection with a circuit judge's serving as an executor under a will, even though he charges a fee for his services in carrying out that function.
However, should the estate involved in the will of which he is executor constitute the subject matter in a controversy or adverse proceeding in the executor's circuit court, the circuit judge would have to disqualify himself in such proceeding because of his apparent pecuniary interest.
In conclusion, we find no statute expressly prohibiting a circuit judge from being appointed as an executor of an estate. Of course, we assume that the circuit judge would not, in performing his duties as executor, neglect his judicial duties in carrying on his circuit court work. See KRS 27A.020(3). See also § 112, Kentucky Constitution.