Can a Co-Executor Be Removed in New York?

Written by Albert Goodwin, Esq., Law Offices of Albert Goodwin. Statutory references are to the New York Surrogate's Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL).

Yes. A New York Surrogate's Court can suspend, modify, or revoke the letters testamentary of one co-executor and leave the other in office. Courts treat removal as a drastic step. They give weight to the testator's choice of executors, and they rarely remove a fiduciary only because two co-executors do not get along.

This page covers the problems that come up when a will names two or more executors. It is written for two readers: a co-executor who cannot get the other executor to cooperate, and a beneficiary watching two fiduciaries stall or mismanage an estate. For removal of a single executor or an administrator, see our page on removing an administrator in New York. For the general duties every fiduciary owes, see breach of fiduciary duty.

Why Co-Executor Disputes Are Different

A sole executor who does nothing can be compelled or replaced, and the estate has no other fiduciary in the meantime. With co-executors, one fiduciary is usually ready to act and the other is blocking, absent, or acting alone without authority. The legal questions change as a result:

• Standing: Can one executor bring a proceeding against the other?
• Joint action: Can the willing executor act alone?
• Deadlock: If not, what can the court order short of removal?
• Exposure: Is the cooperative executor liable for what the other one does?
• Aftermath: Who runs the estate if one executor is removed?

Who Can Petition to Remove a Co-Executor

SCPA 711 allows a removal petition by a co-fiduciary, a creditor, any person interested in the estate, or a person acting on behalf of a minor or other person under a disability. Because a co-executor is named in the statute, you do not need to be a beneficiary to bring the proceeding. You have standing because you share the office.

Beneficiaries have standing as persons interested in the estate. If you are a beneficiary and only one of two executors is the problem, you can ask the court to remove that executor alone and leave the other in place.

The Joint-Action Rule: Two Executors Must Act Together

Under EPTL 10-10.7, unless the will says otherwise, a power held by three or more fiduciaries may be exercised by a majority. That majority rule does not apply when there are only two. Two co-executors must generally act jointly.

In practice, when two executors are serving:

• Banks usually require both signatures to open the estate account and to write checks or make withdrawals.
• Deeds and contracts of sale for estate real property generally need both executors to sign.
• Brokerage firms, title companies, and transfer agents commonly ask for both executors' signatures.
• One executor acting alone may be acting without authority, which can expose that executor to personal liability.

With three or more executors, a majority can act. A dissenting executor who is required to join in the act can limit personal liability by stating the dissent in writing to the co-fiduciaries at or before the time of joining, as EPTL 10-10.7 provides. If you are outvoted and disagree, put your objection in writing before you sign.

Check the will first. Many wills change the default rule, for example by allowing either executor to act alone, giving one executor the deciding vote, or naming a successor if an executor stops serving.

What Happens in a Deadlock

A deadlock between two executors can freeze an estate. Bills go unpaid, a house sits empty and uninsured, tax deadlines pass, and the beneficiaries receive nothing. The Surrogate's Court has several tools that stop short of removal.

Advice and Direction (SCPA 2107)

A fiduciary can ask the court for advice and direction on a specific question, such as whether to accept an offer on estate property or how to handle a particular asset. The court has discretion to decline, and it generally will not make ordinary business decisions for the fiduciaries. In appropriate cases, an order of direction can break a disagreement over a defined transaction.

Compelling a Co-Executor to Act (SCPA 2102)

Where a fiduciary is refusing to perform a specific duty, such as signing a document or releasing funds, a proceeding under SCPA 2102 can ask the court to compel performance.

Proceedings to Sell Real Property (SCPA Article 19)

If the dispute is over whether or when to sell a house or apartment, Article 19 of the SCPA provides a court-supervised route to authorize the sale. This is often relevant when one executor is also a beneficiary living in the property. See our page on a beneficiary living in the inherited house.

Modifying Letters

SCPA 711 allows the court to modify letters as well as revoke them. In some cases the court may restrict what one executor can do, require court approval for certain acts, or require a bond, instead of removing that executor outright.

Mediation

Some disputes between co-executors are about communication and timing, not misconduct. Several New York Surrogate's Courts refer estate disputes to mediation. A negotiated agreement on a sale, a distribution schedule, or one executor's voluntary resignation is often faster and cheaper than a removal hearing.

The Legal Standard: Friction Alone Is Usually Not Enough

This is the issue courts address most often in co-executor cases. Siblings named as co-executors often distrust each other, and many removal petitions are built mainly on that hostility. New York courts generally hold that animosity between co-fiduciaries is not, by itself, grounds for removal. The usual question is whether the conflict is impairing administration of the estate or putting estate assets at risk.

Courts also start from the position that the testator chose these people deliberately. A decedent who named two children to serve together may have known they did not get along. Courts are reluctant to override that choice without clear evidence that the estate is being harmed.

A removal petition is stronger when it shows concrete consequences, for example:

• Months of unanswered requests to sign checks, tax returns, or a listing agreement
• Penalties, interest, or lapsed insurance caused by the delay
• A property sitting vacant or deteriorating because one executor will not cooperate
• One executor withholding records, keys, or account information from the other
• One executor taking estate funds or acting alone without authority

Allegations without documents seldom succeed. The Court of Appeals held in Matter of Duke, 87 N.Y.2d 465 (1996), that a Surrogate generally may not suspend or remove a fiduciary without a hearing unless the misconduct is established by undisputed facts, concessions, the fiduciary's own statements in court, or facts in the court's records. Expect to prove your case.

Grounds for Removal Under SCPA 711 and 707

SCPA 711 lists the grounds on which the court may suspend, modify, or revoke letters. The grounds most relevant to co-executors include:

• Disqualification: The executor has become ineligible under SCPA 707.
• Waste or improper use of assets: The executor has wasted or improperly applied estate assets, or is likely to.
• Failure to obey court orders: The executor has disregarded an order or decree of the court.
• Unfitness: Dishonesty, substance abuse, improvidence, or want of understanding makes the executor unfit to serve.
• Letters obtained by false suggestion: The executor obtained letters by misrepresenting or concealing a material fact.

SCPA 707 sets out who is ineligible to receive letters. It includes a person convicted of a felony, which is different from a person merely charged with a crime. It also includes a minor, a person found incompetent, and certain non-domiciliary aliens, and it allows the court to find a person ineligible because of substance abuse, dishonesty, improvidence, want of understanding, or other unfitness. For more on criminal history, see serving as an executor with a felony conviction.

Self-dealing is a frequent ground. An executor who buys estate property, or sells it to a family member or to a company the executor controls, faces serious scrutiny. Our fiduciary duty page covers self-dealing in more detail.

SCPA 711 vs. SCPA 719: Two Routes to Removal

SCPA 711: Removal on Petition

This is the usual route. You file a verified petition stating the grounds and supporting facts. The court issues a citation requiring the co-executor, and other interested parties, to appear and show cause why letters should not be revoked. If facts are disputed, the case may proceed to discovery and a hearing.

While the petition is pending, the court can suspend the co-executor's letters. Suspension stops the co-executor from acting for the estate until the court decides the petition. If you are a co-executor facing ongoing waste, or a beneficiary watching assets disappear, a request for suspension is often the most useful early step. Courts generally require a strong showing before suspending a fiduciary, consistent with Matter of Duke.

SCPA 719: Removal Without Process

SCPA 719 allows the court to suspend, modify, or revoke letters without a citation in specific situations described in the statute. These include situations where the fiduciary's ineligibility or default is already shown by the court's own records, such as certain failures to comply with court orders, bond requirements, or accounting requirements. Because it bypasses the usual process, courts apply it narrowly.

When the "Innocent" Co-Executor Has Exposure Too

Co-executors share responsibility for the estate. If you know or should know that your co-executor is misusing estate funds, ignoring obligations, or self-dealing, and you do nothing, you may face surcharge along with the co-executor who caused the loss. Courts look at whether you took reasonable steps to protect the estate.

To protect yourself:

• Do not sign checks, deeds, or tax filings you have not reviewed.
• Put objections in writing and keep copies.
• Ask for statements, records, and an accounting if your co-executor controls assets.
• If the problem continues, bring it to the court through a compulsory accounting, a turnover proceeding, or a removal petition.

Waiting until the final accounting to raise objections can leave you explaining why you did not act sooner.

What Happens After a Co-Executor Is Removed

Who Runs the Estate

The answer depends on the will and the court's order. If the will names a successor executor, that person may seek letters. If no successor is named, the remaining co-executor usually continues to administer the estate alone unless the will requires two fiduciaries. Where no qualified executor remains, the court can appoint an administrator c.t.a. (with the will annexed).

Turnover and Accounting

The removed executor must turn over estate assets, records, keys, and documents. If they do not, a turnover proceeding under SCPA 2103 can be used. The court can also compel the removed executor to account for their time in office under SCPA 2205. See our accountings page.

Commissions

Executor commissions are governed by SCPA 2307. A removed executor's commissions may be reduced or denied where the court finds misconduct or that the executor did not perform the duties of the office. The court decides this, often at the accounting stage.

Surcharge

If the removed executor's conduct caused a loss, the court can surcharge that executor, meaning order the executor to repay the estate personally. A surcharge can be offset against the executor's commissions or the executor's own inheritance, and it can be enforced against personal assets.

Who Pays the Legal Fees

Each side generally pays its own lawyer at the outset. Under SCPA 2110, the Surrogate's Court has discretion to fix attorney's fees and to direct that they be paid from the estate or charged against a particular share. Courts consider whether the legal work benefited the estate, along with factors such as time spent, difficulty, and results.

Winning a removal petition does not automatically mean the estate will pay your fees. A fiduciary who defends a removal proceeding in bad faith or causes the litigation through misconduct may be denied reimbursement from the estate, and in some cases may be charged personally. These outcomes are discretionary and vary from case to case.

Typical Process and Timeline in the NYC Surrogate's Courts

1. Review the will and letters: Confirm who was appointed, whether the will changes the joint-action rule, and whether a successor is named.
2. Document the problem: Gather the evidence listed below and send written requests that create a record.
3. Try a narrower remedy if it fits: A demand letter, mediation, an SCPA 2107 application, or a proceeding to compel a specific act.
4. File the petition: A verified SCPA 711 petition in the county where the will was probated, with a request for suspension if assets are at risk.
5. Citation and return date: The court issues a citation and all interested parties must be served before the return date.
6. Answer, conferences, and discovery: If the co-executor contests, expect court conferences and document exchange and depositions under SCPA Article 4 and the CPLR.
7. Hearing or settlement: Many cases settle, often through a voluntary resignation. Others go to a hearing.
8. Decree and follow-up: Turnover, an accounting, and appointment of a successor if needed.

Timing varies by county and by how hard the case is fought. An uncontested resignation can be resolved in a few months. A contested removal with discovery commonly takes many months and can run longer than a year. For context on general estate timing, see our sample NYC probate timeline.

Removal petitions in New York City are filed in the Surrogate's Court of the county where the will was probated:

• New York County (Manhattan): 31 Chambers Street, New York, NY
• Kings County (Brooklyn): 2 Johnson Street, Brooklyn, NY
• Queens County: 88-11 Sutphin Boulevard, Jamaica, NY

Each court has its own calendar practices and conference procedures, so confirm local requirements before filing.

Evidence Checklist

• The will, the probate decree, and the letters testamentary
• Estate bank statements and cancelled checks
• Emails, texts, and letters showing requests to the co-executor and the lack of response
• Notices of late fees, tax penalties, insurance lapses, or code violations
• Appraisals and broker opinions of value for real property and other major assets
• Offers received for estate property and the co-executor's response
• Records of any transfers to the co-executor, family members, or related companies
• Any inventory, informal accounting, or tax returns filed for the estate
• Certificates of disposition, if a felony conviction is at issue

Cost and Outcome Expectations

Cost depends mostly on whether the co-executor contests. A negotiated resignation costs far less than a hearing. A contested removal that goes through discovery and a hearing can cost tens of thousands of dollars in legal fees, and fee recovery from the estate is not assured. Before filing, weigh the size of the estate, the strength of your documents, and whether a narrower remedy would solve the problem. Removal is one option, and for co-executors it is often not the first one.

Related Pages

• Beneficiary and executor conflicts
• Breach of fiduciary duty attorney
• Estate accountings
• Administrator c.t.a.
• Will contests
• Letters testamentary

Talk to a New York Estate Litigation Attorney

If you are a co-executor who cannot get your co-fiduciary to act, or a beneficiary dealing with two executors who cannot agree, we can review the will, the letters, and your records and explain which remedy fits. The Law Offices of Albert Goodwin has offices in New York City, Brooklyn, and Queens. Call 212-233-1233 or email [email protected].

This page provides general information about New York law and is not legal advice. Outcomes depend on the facts of each case and the court's discretion.