Can I Object to an Appointment of an Executor

Yes, you can object to the appointment of an executor in New York, but only on grounds the law recognizes. The starting point is Surrogate’s Court Procedure Act § 711, which lists the reasons a Surrogate’s Court can refuse to let a person serve as executor, or can dismiss an executor who is already serving. If your reason matches one of those grounds and you can prove it, an objection can succeed. If it does not, the court will usually let the executor named in the will go forward.

This page walks through the statutory grounds, then through the reasons people actually bring to us, and explains how the two fit together. Procedurally, an objection to the appointment itself is filed under SCPA § 709 before letters issue, in the probate or administration proceeding; the grounds are ineligibility under SCPA § 707 and the same conduct that would justify removal under § 711. We have a separate page on SCPA 711 removal proceedings for the procedure once letters have issued.

The Grounds for Objecting to an Executor Under SCPA § 711

Stealing, waste and mismanagement

The clearest ground is that the executor is stealing from the estate. That alone is enough to object. Close behind it is wasting or mismanaging the estate’s assets: an executor who makes bad decisions with estate property can be objected to if the mismanagement can be proven. Misconduct in a broader sense, meaning conduct that makes it inappropriate for the executor to remain in charge of the estate, is also a ground, as is dishonesty, meaning proven instances of the executor lying about the circumstances of the estate or about 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 can be objected to; an alcoholic executor should be objected to. Improvidence covers an executor who is too simple and lacks the sophistication to handle a complicated estate, and also one who is careless, neglectful or shortsighted. Lack of mental capacity means the executor does not have the mental ability to collect the assets, pay the debts and distribute what remains to the beneficiaries.

Disobeying a court order

When the executor does not do what the judge ordered, for example fails to provide an accounting, fails to sell or distribute the estate’s property, or fails to pay a debt or bequest, that disobedience is one of the most effective grounds for objecting. It is easy to prove, because the order and the failure to comply are both on the court’s own record.

Misleading the court, and the occurrence of a contingency

An executor who should never have been appointed because they lied about being qualified can be objected to on that basis; for example, the executor is not related to the person who died or is not actually named as executor in the will. Separately, a will sometimes provides that a person stops being executor when a particular event happens. If that contingency has occurred, the executor’s authority ends with it.

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 sound like much, but we have seen the court remove an executor where failure to report 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 likewise be objected to.

Unfit, ineligible or disqualified

Fitness for the office is a moral standard the court applies 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, can be objected to as unfit. A person may also simply be ineligible to serve at all, for example because they have been convicted of a felony or are under 18, or because they are trying to become administrator of an estate without being related to the decedent. A person who started out eligible can later become disqualified, again for example by a felony conviction. We cover the eligibility rules on our SCPA 707 page.

Violating a trust, and failing to account

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

It is not easy to succeed in objecting to an executor, because an executor nominated in the will is presumed to be qualified and eligible to serve unless proven otherwise. But if you have evidence of misconduct or disqualification of the kind New York law specifies, an objection can succeed, and we see executors turned away and removed regularly.

The Reasons Beneficiaries Actually Want to Object

When someone tells us they are not comfortable with the executor and want to object, the reason they give is rarely phrased in the language of the statute. Most often it is a question of 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 while they were alive.

Almost as often it is about relationship: the executor is not a blood relative, or is the beneficiary’s father’s second or third wife, or the executor and the beneficiary simply do not get along. Communication is another frequent complaint. The executor is not communicating, or the beneficiary has tried to make contact and is being ignored.

Then there are concerns about ability: the executor is not good with money, is too old or too young to manage an estate, or lives out of state. Finally, many people feel they are the better choice. They have more experience with finances or legal matters than the executor, the person who died would have wanted them to handle the estate, or the majority of the people benefitting from the estate want them, not the executor, in charge.

Which Reasons Are Enough

Some of these everyday reasons can be good grounds to object to an executor and some may not be enough on their own; they work best in combination. Three things drive the outcome. The worse the executor’s misconduct, the better the chance the objection succeeds. The closer your actual complaint sits to one of the grounds listed in SCPA § 711 above, the better the chance it goes through. And the better your proof, the better the chance of success. Suspicion that an executor will steal is weak by itself; bank records showing that the executor has already taken estate money is a different case.

The same rules protect an executor who is doing the job properly. A beneficiary who dislikes the executor, or who would have preferred to be appointed, does not have a ground under the statute, and the court will not remove a nominated executor on that basis alone.

Talk to Us About Objecting to an Executor

If you are dealing with an executor who is not doing the job correctly, or you are an executor facing objections, we can review the facts against SCPA § 711 and the case law that applies it and tell you whether there are enough grounds to object or to seek removal. Call the Law Offices of Albert Goodwin at 212-233-1233 or write to [email protected] to make an appointment.