Options for Removing an Executor

If you are trying to figure out how to remove an executor of a New York estate, the New York Surrogate’s Court Procedure Act, Section 711 is a good place to start. It provides a wide range of grounds to remove an Executor. Here is the list of the reasons, or “grounds,” that can get a New York executor dismissed, or “fired” by the Surrogate’s Court:

• The Executor is stealing from the estate. Enough said. Definitely enough of a reason to remove an executor.
• The Executor wasting or mismanaging assets of the estate. An executor makes bad decisions with the estate’s assets. Proving this can lead to the removal of an executor.
• Misconduct. Doing something that makes it look bad for the executor to be in charge of the estate any longer.
• Dishonesty. Proven instances of the executor lying about the circumstances of the estate or of the affairs of the decedent (the person who died).
• Substance abuse. An Executor whose use of drugs or alcohol impairs their judgment as it relates to executing their duties as Executor. An executor who is a drunk should be removed.
• Improvidence. An Executor who is too simple and lacks the sophistication to handle a complicated estate should be removed. An Executor who is careless, neglectful or shortsighted should be removed as well.
• Lack of mental capacity. An Executor who does not have the mental ability to collect the assets, pay debts and distribute the remainder to the beneficiaries.
• Disobeying a Court Order. The Executor not doing what the judge ordered. For example, the Executor’s failure to provide an accounting, failure or sell or distribute the estate’s property, or failure to pay a debt or bequest. If you are figuring out how to remove an executor, this is one of the most sure-fire ways.
• Misleading the Court. When the Executor 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, the Executor is not really related or not really named as the Executor in the will.
• The occurrence of a Contingency. A will states that the person stops being an Executor upon a contingency of some event, and the contingency event has occurred.
• Failure to Notify the Court of Change of Address. An Executor who fails to notify the court of a change of address within 30 days after such change (does not seem like a big deal, but we have actually seen the court remove an executor of an estate where failure to notify the court of the change of address was one of the factors).
• Removing property from New York state. An Executor removing property of the estate from the state of New York without prior approval of the court or waivers from the beneficiaries of the estate.
• Unfit. The Executor being unfit for the execution of the office. This is a moral standard that will be determined on a case-by-case basis. For example, an Executor who misleads the court or beneficiaries, manipulated and lied to the decedent, beneficiaries or the court should be removed.
• Ineligible. The person who is trying to become the Executor is not eligible to do so. For example, being convicted of a felony or being under 18. Or trying to become an administrator of the estate and not being related to the decedent.
• Disqualified. An Executor who started out being eligible but should now be disqualified. For example, being convicted of a felony.
• Violating the Terms of the Trust. An Executor who threatens to violate a testamentary trust that is a part of the will.
• Failing to Account. An Executor who fails to file an account within the time and manner directed by the court.

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 if you have evidence of misconduct or disqualification specified by New York law, it is possible to dismiss an Executor or get replaced with someone else. We see executors get removed all the time.

The Reasons Beneficiaries Want to Remove the Executor

When someone tells me that they are not comfortable with the Executor, it is usually because:

• The Executor is not trustworthy
• The Executor is not my blood relative
• The Executor is my father’s second or third wife
• I suspect the Executor will steal from the estate
• The Executor took money from the person who died
• The Executor and I do not get along
• The Executor is not communicating with me
• I tried contacting the Executor and they are ignoring me
• The Executor is not good with managing money
• The Executor is too old to manage an estate
• The Executor is too young to manage an estate
• The Executor lives out of state
• I have more experience with managing finances or with legal matters than the Executor
• The person who died would have wanted me to handle the estate, not the Executor
• The majority of the people benefitting from the estate want me, not the Executor, to handle it

Some of the usual reasons can actually be good reasons to fire an Executor, and some of them may not be enough. They work best when combined.

• The worse the misconduct of the Executor, the bigger the chance of removal of Executor.
• The closer the actual ground is to one of the grounds listed in the Surrogate’s Court Procedure Act (top of the article), the bigger the chance of removal.
• The better the proof, the bigger the chance of removal.

When faced with an Executor who is not doing their job correctly, it is best to get in touch with a New York estate attorney for a free case assessment and to present the facts and circumstances of your case.

A good estate attorney will use their knowledge of the 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 of the estate.

If you are considering asking for removal of an executor, we at the Law Offices of Albert Goodwin are here for you.You can call us at 212-233-1233 or send us an email at [email protected].