How to Object to an Administrator or Executor’s Appointment

How to Object to an Administrator or Executor’s Appointment

How to Object to an Administrator or Executor’s Appointment 150 150 Kamilla Mishiyeva, Esq.

How to Object to an Administrator or Executor’s Appointment

How to Object to an Administrator or Executor’s Appointment

The problem with having someone other than you serve as estate administrator is that you probably will have no idea what is going on with the case once they are appointed. This happens time and time again. Not long after you sign a waiver and consent form, the administrator disappears into thin air. From there, you will have to hire your own estate lawyer to get any information. But that’s only the tip of the iceberg.  There is the risk of the fiduciary absconding with your inheritance, underselling and undervaluing estate assets, engaging in fraudulent and self dealing activity, and simply being reckless with the money.

As a beneficiary in a will or the next of kin (aka distributee) of the deceased, you should receive a notice either by mail or by personal service (depending on your status and whether you live outside of NYS) of someone petitioning Surrogate’s Court to become administrator or executor of the estate. This notice usually includes an attorney letter of representation and a waiver and consent form. By signing a New York waiver and consent form, you typically consent to the following: (a) the petitioner be appointed as estate administrator or executor; (b) the petitioner need not post a bond for your portion of estate assets; and (c) in the case of a will, you have no objections to the purported will of the deceased.

At this time, depending on the circumstances, you can file your own petition to be estate fiduciary and/or object to the person to be appointed. This article discusses only filing objections to the person serving as the estate representative, not filing objections to a will. Maybe you don’t trust this person because of what has transpired in the past or because they have a substance abuse issue. Whatever your reasons, entrusting them with a considerable amount of money is not a risk you are willing to take.

Before letters of administration or letters testamentary are granted to the petitioner, you must file objections showing your interest in the estate (ie son of deceased) and asserting one or more of the objection grounds set forth in New York Surrogate’s Court Procedure Act 707, the controlling statue on this topic. Pursuant to SCPA 707, a person is disqualified to act as the administrator for any of the following reasons:

Infant

The person petitioning the court to become administrator or executor must be at least 18 years old. Otherwise, they are disqualified from serving.

Incompetent

A person who is judicially declared to be incompetent to manage his or her affairs is disqualified from serving as fiduciary. This determination can be by a guardianship order or rendered by the social security disability administration.

Felon  

The proposed executor or estate administrator cannot be a convicted felon. If the person is in fact convicted felon, a Certificate of Relief from Civil Disabilities must be obtained and filed with the New York Surrogate’s Court.

Serious Character Flaws

The proposed fiduciary is disqualified from acting by reason of dishonesty, fraud, recklessness, carelessness, substance abuse, want of understanding, or any other reason that would render him or her unfit for the job.

If you have inside knowledge about the proposed executor which would render him not necessarily the best choice for estate administration, you must voice the facts and circumstances to the court by form of written objections.

Non U.S. Resident

A proposed fiduciary who resides in a different country and who is not a U.S. citizen may not serve as an executor or administrator of an estate. However, a non U.S. resident/citizen can be appointed if they agree to serve as a co-fiduciary with someone who is a U.S. resident.

Other Factors

The Surrogate’s Court may consider other factors and circumstances not previously mentioned in determining whether someone is eligible to serve. For example, a proposed fiduciary who is unable to speak or write in the English language may be declared ineligible.

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If an administrator or executor is officially appointed by the court, and things go downhill, good luck reversing their appointment. Removing a fiduciary can take years and can costs tens of thousands of dollars in legal fees. This is why it is so important to take preventive measures early on.

Abraham Lincoln has famously said that “He who represents himself has a fool for a client”. Attempting to file objections without hiring a NY probate lawyer or estate attorney can be a disaster and can cause irreparable damage.  Objecting to a fiduciary’s appointment is no easy task. Give us a call at 646 233-0826 to see how we can we assist you.

 

Attorney Advertising. This article is designed to provide general information. It is not intended to be legal advice. It can not and should not be substituted for proper legal representation. You should consult an attorney for legal advice regarding your rights as every case is unique and requires in depth analysis and preparation. Do not submit confidential information through this website. Contact initiated through this website does not create an attorney-client relationship. We make no warranty or guarantee of the accuracy or reliability of information contained herein.

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