Options for Removing an Executor in New York

An executor of a New York estate can be removed, but only by the Surrogate’s Court and only on a ground the law recognizes. The place to start is Surrogate’s Court Procedure Act § 711, which sets out the reasons an executor can be dismissed, or “fired,” by the court. Below we go through those grounds, then the reasons beneficiaries actually give us for wanting an executor out, and how the two match up. For the procedure itself, see our page on SCPA 711 removal proceedings.

Grounds for Removing an Executor Under SCPA § 711

Theft, waste and mismanagement

An executor who is stealing from the estate should be removed; nothing more needs to be said. An executor who is wasting or mismanaging estate assets, meaning making bad decisions with the estate’s property, can be removed if the mismanagement is proven. Misconduct more generally, meaning conduct that makes it inappropriate for the executor to stay in charge of the estate, is also a ground, and so is dishonesty: proven instances of the executor lying about the circumstances of the estate or the affairs of the decedent (the person who died).

Substance abuse, improvidence and lack of capacity

An executor whose use of drugs or alcohol impairs their judgment in carrying out their duties should be removed. So should an improvident executor, which covers both a person who is too simple and lacks the sophistication to handle a complicated estate, and a person who is careless, neglectful or shortsighted. An executor who lacks the mental capacity to collect the assets, pay the debts and distribute the remainder to the beneficiaries can be removed for want of capacity.

Disobeying a court order

An executor who does not do what the judge ordered can be removed. The usual examples are failing to provide an accounting, failing to sell or distribute estate property, and failing to pay a debt or a bequest. If you are trying to work out how to remove an executor, this is one of the most sure-fire routes, because the order and the failure to comply are both on the court’s record. A compulsory accounting is often the way that order comes about.

Misleading the court, and the occurrence of a contingency

If the executor should never have been appointed because they lied about being qualified to be in charge of the estate, for example they are not really related to the decedent or not really named as executor in the will, the letters can be revoked. Separately, a will may provide that a person stops being executor upon some event. Once that contingency has occurred, the executor’s authority ends.

Change of address and removing property from New York

An executor must notify the court of a change of address within 30 days. That does not seem like a big deal, but we have actually seen the court remove an executor where failure to notify the court of a change of address was one of the factors. An executor who removes estate property from the State of New York without prior court approval or waivers from the beneficiaries can also be removed.

Unfit, ineligible or disqualified

An executor who is unfit for the execution of the office can be removed. Fitness is a moral standard decided case by case; an executor who misleads the court or the beneficiaries, or who manipulated and lied to the decedent, the beneficiaries or the court, should be removed. A person may also be ineligible to serve at all, for example because of a felony conviction or because they are under 18, or because they are trying to become administrator of the estate without being related to the decedent. And an executor who was eligible at the outset can later become disqualified, for example by a felony conviction. The eligibility rules are on our SCPA 707 page.

Violating a trust, and failing to account

An executor who threatens to violate a testamentary trust that is part of the will can be removed. So can an executor who fails to file an account within the time and in the manner the court directed.

It is not easy to remove or disqualify an executor, because an executor nominated by the testator (the person who made the will) is presumed to be qualified and eligible to serve unless proven otherwise. But with evidence of misconduct or disqualification of the kind New York law specifies, it is possible to have an executor dismissed and replaced with someone else. We see executors get removed all the time.

The Reasons Beneficiaries Want to Remove the Executor

When someone tells us they are not comfortable with the executor, the reason is usually one of a familiar handful. Most often it is trust: the executor is not trustworthy, the beneficiary suspects the executor will steal from the estate, or the executor took money from the person who died during their lifetime. Next comes relationship: the executor is not a blood relative, or is the beneficiary’s father’s second or third wife, or the two simply do not get along.

Communication is a constant complaint: the executor is not communicating, or the beneficiary has tried to reach the executor and is being ignored. Then there are doubts about ability, that the executor is not good with money, is too old or too young to manage an estate, or lives out of state. And many people believe they would do a better job. They have more experience with finances or legal matters than the executor, the decedent would have wanted them to handle the estate, or the majority of the people benefitting from the estate want them in charge instead.

Which Reasons Are Enough to Remove an Executor

Some of these reasons can be good grounds to fire an executor and some may not be enough on their own. They work best in combination, and three things decide the outcome. The worse the executor’s misconduct, the bigger the chance of removal. The closer the actual complaint is to one of the grounds listed in SCPA § 711 above, the bigger the chance of removal. And the better the proof, the bigger the chance of removal. Not getting along with the executor, by itself, is not a ground; not getting along with an executor who has also ignored an order to account is a strong case.

The same standard protects an executor who is administering the estate properly. Hostility from the beneficiaries, or a beneficiary’s belief that they would have been the better choice, will not by itself persuade the court to override the testator’s selection.

Talk to Us About Removing an Executor

If you are dealing with an executor who is not doing the job correctly, or you are an executor facing a removal petition, we can look at the facts against SCPA § 711 and the case law that applies it and tell you whether there are enough grounds to commence a proceeding to remove the executor or administrator of the estate. Call the Law Offices of Albert Goodwin at 212-233-1233 or email [email protected].