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Defending Executors from Disqualification and Removal

Although New York law gives judges broad discretion to disqualify Executors, the law also gives great respect to the decedent’s decision to appoint an executor. The courts will not disqualify a person from appointment unless there is a real concern for the estate.

Many attempts to disqualify an executor happen because the other beneficiaries don’t like the executor. They say the are “not comfortable” with the executor. But the truth is, it is not their choice who the executor is. The testator gets to nominate the executor, and it’s a decision that the beneficiaries would have to live with.

Most executor disqualification attempts allege some sort of dishonesty. Such attempts are usually tied in with other attacks on the estate, as part of a broader strategy. For example, potential heirs might allege that the executor is hiding the estate’s assets and is for that reason not qualified to act as an executor. Or, they may say that the nominated Executor tricked the decedent into making a will. Allegations alone are not enough to remove or disqualify an executor, and those allegations are notoriously difficult to prove.

New York law states that an executor appointment can be denied “by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.” It also gives some other reasons to disqualify an Executor, see NY SCPA 707.

A vast majority of challenges to executor qualifications are not upheld by New York courts. However, we’ve seen cases where executors were disqualified, especially with wills where there is an alternate executor specified.

Sometimes a bond is enough to calm any concerns with the executor. A bond essentially is insurance on any potential misconduct by the nominated Executor. However, some executors don’t qualify for a bond, and a small percentage of estates are so large as to preclude any sort of bond that makes financial sense. Those are the cases where executor qualifications can become an issue.

The most important thing an executor can do to not get disqualified is to comply with all New York laws, to follow all of the court’s orders and to not miss any deadlines specified in the law or set by the court.

If you are nominated as an Executor and beneficiaries are attempting to disqualify or remove you, call attorney Albert Gurevich at (212) 233-1233.