It is not uncommon for acrimony to arise between the executor and the beneficiaries concerning the administration of a decedent’s estate. Although few would opt to challenge an executor in court, among those unwilling to turn a blind eye to a fiduciary’s underhanded behavior, understand that the task is not an easy one. An Executor (decedent died with a will), an Administrator (no will), or a Trustee of a trust can all be removed for cause in Surrogate’s Court. Removing a fiduciary is a big job, but here are some points for getting started.

Is there a Will?  

In almost all wills, a testator (person making the will) names a primary executor and a successor executor. A successor is listed as back-up in case the primary cannot act or refuses to act on behalf of the estate. This is the same principle as the emergency contact form you fill out at a doctor’s office. If your primary contact person does not answer the phone, the doctor proceeds to call the next person in line. Upon the death of the testator, the named executor files a probate petition (along with the original will) with the Surrogate’s Court. This petition basically asks the court to declare the will as valid and binding, and to officially appoint the nominated executor as the representative of the estate.

In cases where the will names an executor, Surrogate’s Court gives great weight to the decedent’s choice. Courts have consistently held that a testator has the right to determine who is the most suitable to manage his or her estate, and that choice is not to be lightly discarded. Nonetheless, a fiduciary can be removed by the Court if it can be shown by clear and convincing evidence that the executor’s conduct is a danger to the assets of the estate, or that the fiduciary is acting in his or her self-interest and not in the best interest of the estate’s beneficiaries.

Grounds for Removal  

Some examples of a fiduciary’s conduct that may warrant removal are as follows:

Commingling estate assets

Self-dealing

Conflict of interest

Failing to maintain estate records

Failing to comply with court orders

Making false statements

Mismanagement of estate assets

Failure to pay estate obligations

Failure to collect assets

Wasteful litigation

Substance abuse

Failure to file an Accounting

Felony Conviction

Hostility between the parties

Failure to understand fiduciary duties

Procedure for Removal

A party seeking to have an executor, administrator or a trustee removed, must file a petition requesting revocation of the fiduciary’s letters pursuant to NY Surrogate’s Court Procedure Act (SCPA) 711, 712 or 719. The petition must state in clear terms the grounds to revoke the letters. Note that where a petition seeking revocation of letters pursuant to SCPA 711 is entertained by the court, the judge has the power to suspend the fiduciary’s letters during the pendency of the proceeding.

If the petition to revoke is accepted for filing by the court, the clerk will issue a citation date for any interested parties to appear and voice their objections to the removal relief requested in the petition. If any of the interested parties, including the executor, administrator, or trustee reside in New York State, a process server must be hired to personally serve the parties. On the citation date, the judge will typically refer the case out for a conference to see if the issues can be resolved by way of settlement, or set a new date for an evidentiary hearing. The parties at this time can also set a timeline for exchanging discovery demands.

During the removal hearing, clear and convincing evidence must be presented showing the fiduciary’s transgressions. For example, if you are alleging that an asset of the estate was sold by the fiduciary for below fair market value, be sure to supply the court will an official appraisal by a licensed New York appraiser showing the true value of the asset. Do not base your allegations on Zillow and Trulia print-outs. Similarly, if your allegations are that the fiduciary comingled her personal assets with assets of the estate, be sure to produce copies of bank statements. Bank statements can be secured by way of discovery demands or a subpoena. Conclusory statements will not suffice; you must support your allegations with evidence.

New Fiduciary  

If the fiduciary is in fact removed or if he decides to resign, a new person must be appointed in his place. Depending on the petitioner’s relationship to the estate, the new executor or trustee can be the person bringing the petition, a family member, a beneficiary, or the public administrator. The court may further order the fiduciary to pay restitution and award legal fees to the petitioner.

Consult with an Estate Litigation Lawyer

Removing a New York executor or trustee is not an easy task. An evidentiary removal hearing is very much like a trial in which testimony must given and evidence produced. Pursuing a removal proceeding pro-se typically results in wasted effort. Consult with a NY estate litigation lawyer on how to remove an executor who is abusing his fiduciary position.

You may also like some of our other article on dealing with executors such as :

Can the executor sell property without all of the beneficiaries approving?

What to do if an executor is not communicating with the beneficiaries of an estate.

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