New York Surrogate’s Court Procedure Act, Sections 711 provides a wide range of grounds to remove a person in charge of an estate or a trust, be that an executor, administrator or a trustee. It does not mean that it is easy to disqualify or remove a person in charge of the estate. This is because a person who is named in a will or a trust, or to whom the law gives preference in becoming the person in charge of the estate is presumed to be qualified and eligible to serve unless proven otherwise. But if you have evidence of misconduct or disqualification specified by New York law, it is possible to remove a fiduciary, I’ve certainly seen it happen.
The Reasons People in Charge of an Estate Can Get Fired by the Court
- Wasting or mismanaging assets of the estate. Making bad decisions with the estate’s assets
- Misconduct. Doing something that makes it look bad for that person to be in charge of the estate
- Dishonesty. Proven instances of lying about the circumstances of the estate or of the affairs of the decedent.
- Substance abuse. Someone whose use of drugs or alcohol impairs their judgment as it relates to executing their duties as a person in charge of an estate
- Improvidence. Someone who is too simple and lacks the sophistication to handle a complicated estate, or someone who is careless, neglectful or shortsited.
- Lack of mental capacity. Not having the mental ability to collect the assets, pay debts and distribute the remainder to the beneficiaries.
- Disobeying a Court Order. Not doing what the judge ordered
- Misleading the Court. When they should not have been appointed in the first place because they were lying about being qualified to be in charge of the estate. For example, they’re not really related or not really named as the executor in the will.
- Occurrence of a Contingency. A will states that the person stops being in charge upon a contingency of some event, and the contingency event has occurred.
- Failure to Notify the Court of Change of Address. Failing to notify the court of change of address within 30 days after such change (does not seem like a big deal, but I’ve actually seen the court remove an executor of an estate where this was one of the factors).
- Removing property from New York state. Where he has removed property of the estate without the state without prior approval of the court.
- Unfit. Being unfit for the execution of the office. This is a moral standard that will be determined on a case-by-case basis.
- Ineligible. The person who is trying to be in charge of the estate is not eligible to do so. For example, being convicted of a felony, or not being related to the person who died when there is no will.
- Disqualified. Somebody who was eligible before, but is now disqualified. For example, being convicted of a felony.
- Violating the Terms of the Trust. Violating or threatening to violate a testamentary trust that is a part of the will
- Failing to Account. Failure to file an account within the time and manner directed by the court
The Reasons Beneficiaries Want to Fire the Person in Charge of an Estate
When people tell me that they are not comfortable with the person handling their relative’s estate, it is usually because:
- They are not trustworthy
- They are not my blood relative
- They are my father’s second or third wife
- I suspect they will steal from the estate
- They took money from the person who died
- We do not get along
- They don’t communicate with me
- I tried contacting them and they are ignoring me
- They are not good with managing money
- They are too old to manage an estate
- They are too young to manage an estate
- They live out of state
- I have more experience with managing finances or with legal matters
- The person who died would have wanted me to handle the estate
- The majority of the people benefitting from the estate want me to handle it
Some of the usual reasons can actually be good reasons to fire the person in charge of an estate, and some of them may not be enough.
- The worse the misconduct, the bigger change of removal of executor.
- The closer the actual ground is to one of the grounds listed in the Surrogate’s Court Procedure Act, the bigger the chance.
- The more egregious the misconduct, the bigger the change.
- The better the proof, the bigger the chance.
When faced with an estate fiduciary who is not doing their job correctly, it is best to get in touch with a New York estate attorney for a free case evaluation and present the facts and circumstances of your case. A good estate attorney will use their knowledge of New York Surrogate’s Court Procedure Act, Sections 711 and the case law related to it to figure out if your case looks like there are enough grounds to commence a proceeding to remove the executor or administrator who is in charge of the estate.