How to Remove a Trustee in New York Surrogate's Court

By Albert Goodwin, Esq., Law Offices of Albert Goodwin. Last updated: June 2024.

Yes, a trustee can be removed in New York, but removal is a court process governed by specific statutes, not something a beneficiary can accomplish unilaterally. This page explains the procedure for removing the trustee of a New York trust through the Surrogate's Court: the statutory grounds under SCPA 711, the court's power to suspend a trustee summarily under SCPA 719, who has standing to file, what evidence persuades a Surrogate, and what happens to the trustee's commissions when removal is granted.

This is a page about trustees of trusts. If your concern is an estate administrator or executor rather than a trustee, see our pages on administrator removal and related estate-administration topics. For the underlying liability theory that often accompanies removal, see breach of trust and breach of fiduciary duty. For your right to obtain records before deciding to act, see a beneficiary's right to trust information and trust accountings.

Which court hears a trustee removal in New York

Removal of a trustee is brought in the Surrogate's Court of the county where the trust is being administered or where the trustee resides. Although Supreme Court has concurrent jurisdiction over trusts, the Surrogate's Court is the customary and most efficient forum because it administers trusts under the Surrogate's Court Procedure Act (SCPA) and the Estates, Powers and Trusts Law (EPTL). A removal proceeding is commenced by filing a verified petition and issuing process (a citation) to the trustee and other interested parties.

Who has standing to seek removal

The people who may petition to remove a trustee under SCPA 711 include a beneficiary of the trust (including a remainder beneficiary), a co-trustee, a creditor of the trust, and, in some circumstances, a person interested in the welfare of an infant or incapacitated beneficiary. A petitioner must have a genuine interest in the proper administration of the trust; a stranger to the trust generally cannot bring the proceeding.

The statutory grounds for removal under SCPA 711

SCPA 711 enumerates the grounds on which a fiduciary's letters may be revoked. The grounds most often invoked against a trustee fall into the categories below. Each is anchored to a statute, because a vague allegation of "bad behavior" will not, by itself, persuade a Surrogate.

1. Dishonesty, theft, and self-dealing

SCPA 711(2) authorizes removal where the trustee has wasted, misapplied, or improvidently managed trust property, and where the trustee's conduct shows dishonesty. A trustee who takes trust funds for personal use, transfers trust property to himself, or buys trust assets at a discount is engaged in self-dealing. Under EPTL 11-1.6 and the duty of loyalty, a trustee cannot profit personally at the expense of the beneficiaries. Self-dealing is among the most persuasive grounds because it is usually documentary — bank records and deeds tend to speak for themselves.

2. Mismanagement and negligent investing

A trustee in New York invests under the Prudent Investor Act, EPTL 11-2.3, which requires the trustee to pursue an overall investment strategy with reasonable care, skill, and caution, and to diversify unless the trustee reasonably determines it is in the beneficiaries' interest not to. Persistent imprudent investing, failure to diversify, leaving assets idle, or speculative gambling with trust principal can support removal under SCPA 711(2) for improvident management.

3. Commingling trust funds

EPTL 11-1.6 requires that "every fiduciary shall keep property received as fiduciary separate from his individual property." SCPA 719(3) lets the court act where the trustee "mingles the funds of the estate with his own" or deposits them other than as fiduciary. Commingling is a freestanding ground for removal even where no money is ultimately lost, because it destroys the audit trail the law requires.

4. Failure to account, communicate, or distribute

A trustee must keep beneficiaries reasonably informed and must account when required. Refusing to provide information, ignoring beneficiary inquiries, or failing to make distributions the trust directs can support removal, particularly where it is part of a pattern of misconduct. A trustee who refuses a lawful demand to account may be compelled to do so in a separate accounting proceeding.

5. Statutory disqualification and incapacity

SCPA 711(1) and (5) and SCPA 707 reach disqualifying circumstances — for example, a trustee who has become incapable of properly serving by reason of substance abuse, dishonesty, want of understanding, or who is otherwise ineligible to hold letters.

Suspension and summary action under SCPA 719

Ordinarily a trustee is removed only after process is issued and the trustee has a chance to respond. SCPA 719 is the exception: it permits the court, in enumerated situations, to suspend, modify, or revoke a trustee's letters without issuing process — for instance, where the trustee has commingled funds, has removed property out of state without authority, refuses to obey a court order, or where letters were granted on a false suggestion. SCPA 719 is a powerful tool in cases of ongoing harm, but courts use summary removal sparingly and prefer to give a fiduciary notice and a hearing where time allows.

Burden of proof and what persuades a Surrogate

Removal is a discretionary remedy. New York courts have repeatedly held that the power to remove a fiduciary is exercised cautiously and only where the grounds are clearly established, because removal interferes with the settlor's choice of trustee. The petitioner generally bears the burden of proving misconduct, typically by a preponderance of the evidence (clear and convincing evidence may be required for the most serious accusations).

Courts draw a critical distinction between actual misconduct or endangerment of the trust property, which justifies removal, and mere friction or hostility between the trustee and a beneficiary, which usually does not. As the Court of Appeals observed in Matter of Duke, 87 N.Y.2d 465 (1996), courts will not lightly disturb a testator's or settlor's selection of a fiduciary; removal requires a showing of misconduct, not simply disagreement. Hostility becomes a ground only when it interferes with the proper administration of the trust. Conflicts that the settlor knew about and tolerated when naming the trustee — for example, naming a beneficiary as trustee — are generally not removable conflicts.

The evidence that tends to persuade a Surrogate is concrete and documentary: bank statements showing commingling or unexplained withdrawals, an accounting that does not reconcile, deeds transferring property to the trustee, missed tax filings, or a documented refusal to distribute or account. Generalized complaints, family resentment, and disagreements over reasonable discretionary decisions rarely succeed.

A typical removal timeline

• Pre-filing: gather the trust instrument, demand an accounting, and collect financial records establishing the misconduct.
• Petition: file the verified removal petition under SCPA 711 (or move for summary suspension under SCPA 719 in an emergency).
• Process: a citation issues and is served on the trustee and interested parties, with a return date typically several weeks out.
• Response and discovery: the trustee answers; the court may direct an accounting, depositions, and document exchange. Contested matters can take many months to more than a year.
• Hearing/determination: the court decides removal, may order restitution to the trust, and appoints a successor trustee.

What happens to the trustee's commissions on removal

A removed trustee is not automatically entitled to full commissions. Where a trustee is removed for misconduct, New York courts have the discretion to deny or forfeit commissions, in whole or in part, particularly where the trustee acted dishonestly or caused loss to the trust. The court may also surcharge the trustee — that is, order the trustee to repay the trust for losses caused by the breach. A trustee who served faithfully but is removed for reasons unrelated to wrongdoing may still be allowed reasonable commissions for the period of proper service.

Who replaces a removed trustee

When a trustee is removed, the court appoints a successor. The trust instrument may name a successor; if not, the court will look to the persons entitled under the trust and the SCPA's order of priority. A corporate or independent trustee may be appointed where family members cannot serve impartially. The successor steps into the role and may be directed to pursue restitution from the former trustee.

How this proceeding differs from a damages claim

Removal addresses who administers the trust going forward. It is often paired with, but distinct from, a claim for breach of trust or breach of fiduciary duty, which seeks money damages or a surcharge for losses already caused. You can seek both in the same Surrogate's Court proceeding. If your immediate need is information rather than removal, an accounting proceeding may be the better first step.

Speak with a New York trust litigation attorney

At the Law Offices of Albert Goodwin, we handle trustee removal and trust litigation in Surrogate's Courts throughout New York, including New York County, Kings, Queens, Bronx, Richmond, Nassau, Suffolk, and Westchester. To discuss whether the facts of your situation meet the standards under SCPA 711 and 719, call us at (212) 233-1233 to request a consultation.

This article is for general information about New York law and is not legal advice. Trust matters are fact-specific; consult an attorney about your particular circumstances.