An administrator or executor of a New York probate estate must carry out the intent of the testator of the will and must act in good faith and in the best interests of the beneficiaries in managing, investing, distributing assets, making accountings and winding up and closing the estate. If the executor is not performing those duties, there comes a point when they can be removed by the court.
Grounds for Executor Removal
There are circumstances that arise that may require the removal of an executor or administrator. The plaintiff bringing the action to remove must establish that a fiduciary trust has been broken or violated. Under New York law, a beneficiary, creditor or heir who believes there has been a fiduciary breach of trust such as mismanagement of estate assets or bad investment decisions that have caused substantial financial losses to the beneficiaries and the estate, can file a probate litigation removal proceeding with the New York Surrogate’s Court. They can also request an audit of the estate and accountings to determine the amount of any financial losses.
Examples of a breach of fiduciary duty include:
- A conflict of interest
- Acts that result in the financial greed or gain of the fiduciary
- Embezzlement of estate assets or convicted of past felonies
- Loss of revenues or bad investments
- Violation of court orders
- Mental Incompetence
- Mismanagement of assets, investments, accountings and errors
- Hiding information from beneficiaries and heirs
In a large estate and substantial assets, sometimes having a family member such as a spouse or child of the testator acting an administrator or executor may not be in the best interests of all the beneficiaries even if it was the wishes of the testator that this person carry out the fiduciary duties of administering the estate. It may be better to have an independent paid administrator or executor appointed by the New York Surrogate’s Court to quell disputes arising among beneficiaries and help eliminate conflicts of interest.
Breach of fiduciary duties are matters that require the assistance of a skilled and experienced New York Probate Attorney who understands the New York probate and inheritance laws and removal proceedings. While it is up to the court to make the final decision to remove the administrator or executor based upon satisfactory and sufficient evidence, having an attorney representing and protecting your interests will ensure a greater chance of successfully getting the court to rule in your favor. The attorney can also assist you with recommending a successor administrator or executor and selecting other experts to assist the successor administrator or executor such as a financial planner, accountant, insurance agent, and other professionals.
If you need legal assistance with a removal proceeding, speak to an estate attorney at the Law Offices of Albert Gurevich at (212) 233-1233.