Can a Co-Executor Be Removed?

In New York, a co-executor, estate creditor, beneficiary, or any interested person may remove a co-executor due to disqualification or misconduct by the filing of a petition for the co-executor’s removal.

Grounds for Removal

A co-executor can be removed from office based on a variety of grounds under SCPA § 711 and 719. The most often-used grounds for removing a co-executor are:

Conflict of Interest

Conflict of interest occurs when a fiduciary’s personal or financial interests compromise or clash with his professional duties as co-executor. New York case law is explicit that a co-executor cannot sell estate property to himself, his spouse, or to an entity, such as a LLC, he owns. This is called per se self-dealing and will be set aside by the court without even delving into the merits of the transaction.

However, conflict of interest can still occur when the co-executor sells estate property to a family member, such as his son, or his live-in partner. In these cases, although the court may not consider it per se self-dealing, the court can look into the merits of the transaction and consider it self-dealing. It is a ground for removal of an executor or co-executor.

Mismanagement of the Estate

Co-executors can also be removed due to mismanagement. Mismanagement occurs when estate assets are wasted due to the co-executor’s negligence. When a co-executor improperly fails to pay bills, incurring additional penalties, or incorrectly fills out tax returns, resulting to a higher imposition of taxes, interested parties can request for the removal of such co-executor.

Failure to Perform Duties

Another reason a co-executor is removed is due to his absence or failure to perform duties. In most cases, the signatures of both executors are required to open an estate account and make banking transactions, such as check payments to third parties and withdrawals. Both signatures are also required to execute deeds. When a co-executor is absent or fails to timely respond to the other co-executor’s requests, the management of the estate is delayed, resulting to mismanagement. This co-executor’s absence or failure to perform duties can be a ground for his removal.

Incapacity or Other Reason for Disqualification

A co-executor can also be removed due to incapacity or other reason for disqualification. When an executor becomes incapacitated while in office, has been charged with a serious crime, or is known for substance abuse, these could be grounds for a co-executor’s removal.

Other Analogous Circumstances

There may be other grounds for the removal of a co-executor from office. It is best to get the advice of an estate litigation lawyer to see if there is reason to remove the co-executor.

Procedure for Removal

Removing a co-executor always begins with a petition, filed before the court, requesting for the co-executor’s removal, stating the specific grounds for removal and the facts and other documents supporting such grounds.

It requires notice to all interested parties and not just the co-executor. Interested parties are all persons who will be affected by such removal, such as the other co-executor and beneficiaries or heirs of the estate.

The court will issue a citation to the co-executor to show cause why the relief stated in the petition should not be granted. It will direct the co-executor to appear before the court to explain. For this reason, it is important when you are petitioning for a co-executor’s removal to ensure that your reason for asking such removal is supported by facts and documents. Mere allegations, without any evidence supporting your allegations, are insufficient to convince the court to order the co-executor’s removal.

Surcharge

When the actions of a co-executor has resulted to financial damage to the estate, you can also request the court to order the co-executor to pay for such damage. This can be taken from the executor’s commission, his share of the estate if he is also a beneficiary, or his own personal property.

Attorney’s Fees

When your petition to remove the co-executor is successful, the court can order your attorney’s fees to be paid for by the estate. When the court finds merit in your petition to remove the co-executor, it means such removal was for the benefit of the estate. As such, the estate becomes liable for your attorney’s fees. For this reason, ensuring that your petition is supported by evidence is key to having the estate ultimately pay for your attorney’s fees.

Other Remedies

Sometimes a co-executor is simply threatening to commit an act that might be harmful or detrimental to the beneficiaries, such as the sale of estate property below market value. In that case, your attorney can file a request for the issuance of a temporary restraining order or preliminary injunction. Other remedies may be available depending on the unique circumstances of your case.

Filing a petition to remove a co-executor can be a complex and challenging process. Being assisted by a competent estate litigation attorney will ensure less mistakes in your petition, more time saved, and transferring the obligation of paying your attorney’s fees to the estate. Should you have queries regarding co-executor removal, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].