If you are trying to figure out how to object to an appointment of a personal representative 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 a personal representative’s appointment. Here is the list of the reasons, or “grounds,” that can get a New York personal representative dismissed, or “fired” by the Surrogate’s Court:
- The personal representative is stealing from the estate. Enough said. Definitely enough of a reason to object.
- The personal representative wasting or mismanaging assets of the estate. a personal representative makes bad decisions with the estate’s assets. Proving mismanagement is a valid ground to object to a personal representative.
- Misconduct. Doing something that makes it look bad for the personal representative to be in charge of the estate any longer.
- Dishonesty. Proven instances of the personal representative lying about the circumstances of the estate or of the affairs of the decedent (the person who died).
- Substance abuse. a personal representative whose use of drugs or alcohol impairs their judgment as it relates to executing their duties as personal representative. You should object to an alcoholic personal representative.
- Improvidence. If a personal representative who is too simple and lacks the sophistication to handle a complicated estate, you can object to their appointment. a personal representative who is careless, neglectful or shortsighted should be objected to as well.
- Lack of mental capacity. a personal representative 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 personal representative not doing what the judge ordered. For example, the personal representative 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 a personal representative, this is one of the most effective ways.
- Misleading the Court. When the personal representative should not have been appointed in the first place because they were lying about being qualified. For example, the personal representative is not related to the person who died or is not named as the personal representative in the will.
- The occurrence of a Contingency. A will states that the person stops being a personal representative upon a contingency of some event, and the contingency event has occurred.
- Failure to Notify the Court of Change of Address. a personal representative 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 a personal representative 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. a personal representative 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 personal representative 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 a personal representative 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 personal representative.
- Ineligible. The person who is trying to become the personal representative is not eligible to do so. For example, being convicted of a felony or being under 18. Or trying to become a personal representative of an intestate estate and not being related to the decedent.
- Disqualified. Objecting to a personal representative 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. a personal representative who threatens to violate a testamentary trust that is a part of the will.
- Failing to Account. a personal representative who fails to file an account within the time and manner directed by the court.
It is not easy to successfully object to a personal representative, because a personal representative 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 a personal representative.
The Reasons Beneficiaries Want to Object
When someone tells me that they are not comfortable with the personal representative and want to object to their appointment, it is usually because:
- The personal representative is not trustworthy
- The personal representative is not my blood relative
- The personal representative is my father’s second or third wife
- I suspect the personal representative will steal from the estate
- The personal representative took money from the person who died
- The personal representative and I do not get along
- The personal representative is not communicating with me
- I’ve tried contacting the personal representative and they are ignoring me
- The personal representative is not good with managing money
- The personal representative is too old to manage the estate
- The personal representative is too young to manage the estate
- The personal representative lives out of state
- I have more experience with managing finances or with legal matters than the personal representative
- The person who died would have wanted me to handle the estate, not the personal representative
- The majority of the people benefitting from the estate want me, not the personal representative, to handle it
Some of the usual reasons can actually be good reasons to object to a personal representative, and some of them may not be enough. They work best when combined.
- The worse the misconduct of the personal representative, 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 a personal representative 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 a personal representative.
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 personal representative.
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