If you are trying to figure out how to object to an appointment of an Executor in 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 object to an Executor’s appointment. 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 object.
- The Executor wasting or mismanaging assets of the estate. An executor makes bad decisions with the estate’s assets. Proving mismanagement is a valid ground to object to 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. You should object to an alcoholic executor.
- Improvidence. If an Executor is too simple and lacks the sophistication to handle a complicated estate, you can object to their appointment. An Executor who is careless, neglectful or shortsighted should be objected to 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 fails to provide an accounting, fails to sell or distribute the estate’s property, or fails to pay a debt or bequest. If you are figuring out how to object to an executor, this is one of the most effective ways.
- Misleading the Court. When the executor should not have been appointed in the first place because they were lying about being qualified. For example, the executor is not related to the person who died or is not 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. Not reporting a change of address does not seem like a big deal, but we have 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. Fitness is a moral standard that the court will apply on a case-by-case basis. For example, if an Executor misleads the court or beneficiaries, manipulated and lied to the decedent, beneficiaries or the court, then you can object to his continuing to be the executor.
- 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. Objecting to an Executor who started out being eligible but is no longer eligible at this time. 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 successfully object to an Executor, because an Executor nominated by 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 have success in objecting to an Executor.
The Reasons Beneficiaries Want to Object
When someone tells me that they are not comfortable with the executor and want to object to their appointment, 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 the estate
- The Executor is too young to manage the 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 object to 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 successful objections.
- 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 objection going through.
- The better the proof, the bigger the chance of objections working.
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. You can get a free case assessment, and an estate lawyer can evaluate the facts and circumstances of your case.
A good estate attorney will use knowledge of the New York Surrogate’s Court Procedure Act, Sections 711 and the case-law related to it. They will figure out if there are enough grounds to object to an executor.
You can call the Law Offices of Albert Goodwin at (212) 233-1233. He is a New York estate, guardianship, wills, trust, Medicaid and probate lawyer. You can make an appointment to discuss your options regarding objecting to the executor.