Can You Remove a Trustee in New York? Grounds and Procedure

By Albert Goodwin, Esq., New York trust and estate litigation attorney

Yes. A trustee of a New York trust can be removed, but only through one of three routes: a court order, a removal power written into the trust instrument, or the trustee's own resignation. This page explains the court route in detail: which statutes apply, which court hears the case, who may file, what the petition must show, and what standard the judge applies. It also covers the alternatives that are often faster and cheaper than a contested proceeding.

If you are looking for the general law on what a trustee may and may not do, see our page on breach of fiduciary duty in New York. If the fiduciary you want removed is an executor or administrator of an estate rather than a trustee, see removing an administrator or executor. Everything below is limited to trustees of lifetime (inter vivos) trusts and testamentary trusts.

The short answer

A New York court removes a trustee for serious misconduct that puts the trust property at risk. It does not remove a trustee because the beneficiaries dislike him, disagree with his investment choices, or find him slow to return calls. The Court of Appeals set the standard in Matter of Duke, 87 N.Y.2d 465 (1996): removal is a drastic remedy, courts must use it sparingly, and the settlor's choice of trustee should be set aside only on a clear showing of serious misconduct that endangers the trust. Not every breach of fiduciary duty justifies removal. Some breaches are remedied by a surcharge (a money judgment against the trustee) while the trustee stays in office.

Which statutes govern trustee removal in New York

Three provisions do most of the work.

• SCPA 711: The main removal statute. It lets a person interested in the trust petition the Surrogate's Court to suspend, modify, or revoke a trustee's authority, or to remove the trustee outright, on listed grounds.
• SCPA 719: Allows the court to suspend or remove a fiduciary without a formal petition and citation in a narrow set of situations, such as failing to account after being ordered to do so or commingling trust funds with personal funds.
• EPTL 7-2.6: Gives the court power over trustees of lifetime trusts: to accept a resignation, to suspend or remove a trustee who has violated or threatens to violate the trust, who is insolvent or about to become insolvent, or who is for any reason unsuitable to carry out the trust, and to appoint a successor.

EPTL 7-2.6 refers to the Supreme Court, but Article 15 of the SCPA extends the Surrogate's Court's jurisdiction to lifetime trusts, and most removal proceedings are brought in Surrogate's Court.

Grounds for removal under SCPA 711

SCPA 711 lists the grounds. The ones that come up most often in trustee cases are these.

• Waste or improvident management: The trustee has wasted, improvidently managed, or injured the trust property, or has removed it from the court's reach or is about to.
• Unfitness: The trustee is unfit by reason of dishonesty, substance abuse, improvidence, or want of understanding, or is otherwise unfit for the office. These mirror the disqualifications that apply at appointment under SCPA 707.
• Disobeying the court: The trustee willfully refused, or without good cause neglected, to obey a lawful direction of the court or a provision of law governing his duties. Ignoring an order to account is the classic example.
• False statements to obtain the appointment: The trustee's authority was obtained by a false suggestion of a material fact.
• Trustee-specific grounds: The trustee has violated or threatens to violate the trust, is insolvent or about to become insolvent, or is for any reason unsuitable to carry out the trust. The same concept appears in EPTL 7-2.6.
• Change of address: Failure to notify the court of a change of address within the time the statute requires. This is rarely the sole basis for removal but is often added to a petition.

Conduct that fits these grounds includes taking trust money for personal use, selling trust property to oneself or a relative at less than fair value, keeping trust funds in a personal account, refusing to make distributions the instrument requires, refusing to account, favoring one beneficiary over another in a way the instrument does not permit, and investing in a manner no prudent investor would under the Prudent Investor Act, EPTL 11-2.3. For a fuller discussion of what counts as a breach, see breach of fiduciary duty. This page is concerned with a narrower question: whether the breach is serious enough to justify removal, and how to ask the court for it.

Summary removal under SCPA 719

SCPA 719 lets the court act without a formal citation in listed situations. For trustees, the most common are:

• The trustee was ordered to account and failed to do so within the time set.
• The trustee mingled trust funds with his own or deposited them with a bank "in an account other than as fiduciary." The underlying duty to keep trust property separate is set out in EPTL 11-1.6.
• The trustee has been convicted of a felony or judicially declared incompetent.
• Any SCPA 711 ground is brought to the court's attention.

"Without process" does not mean without a hearing. In Matter of Duke the Court of Appeals reversed a summary removal because the fiduciary had not been given a chance to answer the charges. In practice the court issues an order to show cause, gives the trustee an opportunity to be heard, and may suspend the trustee in the meantime.

The standard: serious misconduct, not friction

This is the point on which most removal petitions succeed or fail. New York courts give weight to the settlor's choice. A beneficiary who shows that the trustee is rude, slow, or uncommunicative has shown a problem, but usually not a ground for removal. Courts have repeatedly held that hostility between a trustee and the beneficiaries is not enough unless it interferes with the proper administration of the trust. A single mistake, promptly corrected, is generally not enough either.

What persuades a Surrogate is proof of conduct that endangers the trust property or shows the trustee cannot be relied on to handle it honestly: unexplained withdrawals, self-dealing transactions, a refusal to account after written demand, or a pattern of ignoring the terms of the instrument. The petitioner bears the burden of proving the ground by a preponderance of the evidence. Even when a ground is proven, the court decides in its discretion whether the conduct warrants removal, suspension, or a lesser remedy such as a surcharge or a direction to account.

How the Surrogate's Court removal proceeding works

1. Which court

For a testamentary trust, the petition is filed in the Surrogate's Court of the county where the will was probated. For a lifetime trust, SCPA 207 gives jurisdiction to the Surrogate's Court of a county where the settlor was domiciled when the trust was created, where a trustee resides, or where trust property is located. The Supreme Court also has jurisdiction over lifetime trusts, but the Surrogate's Court is the usual forum because fiduciary matters are its daily work.

2. Who may file

SCPA 711 allows a petition by a person interested in the trust, which includes current income beneficiaries and remainder beneficiaries, as well as by a creditor of the trust, a surety on the trustee's bond, or a person acting on behalf of an infant or incapacitated beneficiary. A co-trustee has standing as well. For a charitable trust, the Attorney General has standing under EPTL 8-1.1. The court may also act on its own under SCPA 719 once it learns of a ground.

3. The petition

The petition is a verified pleading. It must identify the trust and attach or describe the instrument, state the petitioner's interest, name the trustee and every person whose interest may be affected, and set out the specific facts that make out a ground under SCPA 711 or EPTL 7-2.6. General accusations are not enough. The petition should attach the documents that support it: bank and brokerage statements, deeds and closing statements, correspondence, the written demand for an accounting and the trustee's response, and the trust instrument. It should also state the relief requested: removal, suspension pending a hearing, an order compelling an account, appointment of a named successor, or all of these.

4. Citation and service

The court issues a citation, the Surrogate's Court equivalent of a summons. It must be served on the trustee and on every other necessary party, including the other beneficiaries, in the manner required by SCPA 307 and within the time the court sets. Service outside New York takes longer. If assets are at risk now, the petition can be brought on by order to show cause with a request for temporary suspension.

5. Answer, discovery, and hearing

The trustee files an answer or objections. If the facts are disputed, the court may allow document discovery and depositions and will hold an evidentiary hearing at which witnesses testify. If the facts are undisputed, the court can decide on the papers. A contested removal proceeding commonly takes several months to more than a year from filing to decision, depending on the county's calendar and the amount of discovery. Matters where the trustee has already defaulted on an order to account move faster.

6. The decree

If the court removes the trustee, the decree ordinarily directs the removed trustee to file an account and to turn over the trust property and records to the successor. The accounting is where any surcharge is fixed. See trust and estate accountings for how that proceeding works.

Suspension while the case is pending

SCPA 711 and 719 both allow the court to suspend a trustee's powers while the proceeding is pending. Suspension is appropriate where there is a credible showing that assets are at risk now, for example a pending sale of trust real property to the trustee's relative, or withdrawals the trustee cannot explain. A suspended trustee keeps the title but may not act. The court may appoint a temporary trustee or allow a co-trustee to act alone in the interim. Suspension is not automatic on filing; the court requires a meaningful factual showing.

Compelling an accounting first

In many cases the better first step is a petition to compel an accounting under SCPA 2205 rather than a removal petition. A beneficiary who suspects wrongdoing but cannot yet prove it will rarely win removal on suspicion. An accounting forces the trustee to disclose every receipt and disbursement under oath. If the account reveals misconduct, the beneficiary can object to the account, seek a surcharge, and move for removal on a developed record. If the trustee ignores the order to account, that failure is itself a ground for removal under SCPA 711 and 719. Your right to information about the trust is covered on our page on beneficiaries' rights to trust information.

Alternatives to a court petition

Court removal is slow and expensive. Before filing, check whether one of these routes is available.

• Removal clause in the trust instrument: Many New York trusts allow the beneficiaries (by majority or unanimous vote), a trust protector, or a named individual to remove and replace a trustee without court involvement. Read the instrument closely. If the clause exists, follow its notice and acceptance requirements exactly and have the successor sign a written acceptance of trusteeship.
• Trust protector or other power holder: New York has no trust protector statute, so a protector has only the powers the instrument grants. If the instrument gives a protector the power to remove the trustee, that is usually the fastest route.
• Voluntary resignation: A trustee may resign without court approval if the instrument permits it, typically by written notice to the beneficiaries and the successor. If the instrument is silent, EPTL 7-2.6 requires the court to accept the resignation. A trustee facing a well-documented removal petition will often agree to resign in exchange for the petitioner dropping the contested proceeding, usually on the condition that the trustee first renders an account.
• Consent of all beneficiaries: If every person beneficially interested in the trust is an adult, competent, and willing, the beneficiaries and the trustee can agree on a resignation and a successor and submit a stipulation to the court for approval. This avoids a contested hearing.
• Revocation or amendment under EPTL 7-1.9: If the trust is revocable and the settlor is alive and competent, the settlor can amend the trust to name a new trustee. An irrevocable lifetime trust can also be amended or revoked by the settlor under EPTL 7-1.9 with the written, acknowledged consent of all persons beneficially interested. This route is unavailable once the settlor has died.
• Bank or trust company trustee: Corporate trustees have internal escalation procedures and will sometimes agree to resign in favor of a successor rather than litigate. See bank as a trustee.

Who becomes trustee after removal

Under EPTL 7-2.3, a trust does not fail for lack of a trustee. If the instrument names a successor, that person takes over once the removal is effective and the successor accepts. If a co-trustee remains, the co-trustee may continue alone if the instrument allows. If there is no one, the court appoints a successor under EPTL 7-2.6 or SCPA 1502. The court gives weight to any preference the settlor expressed and to the beneficiaries' nominations. It may appoint a petitioning beneficiary, another family member, an independent attorney or accountant, or a bank. The person who filed the petition is not automatically appointed.

Recovering losses: surcharge and commissions

Removal by itself does not return money to the trust. Losses are recovered through a surcharge in the accounting proceeding, where the court can order the trustee to repay misappropriated funds, restore losses caused by imprudent investments or below-market sales, and give up any profit from self-dealing. The court may also deny or reduce the trustee's statutory commissions under SCPA 2309. Theft from a trust can be prosecuted as larceny under the Penal Law, but that is a separate process controlled by the District Attorney; the beneficiaries' financial recovery comes through the Surrogate's Court.

Frequently asked questions

How long does it take to remove a trustee in New York?

An uncontested resignation under the trust instrument can be completed in weeks. A contested Surrogate's Court proceeding commonly takes several months to more than a year, longer if there is extensive discovery or an appeal. Suspension pending the outcome can be obtained much sooner if assets are at immediate risk.

What evidence do I need?

Documents, not suspicion: account statements showing unexplained transfers, deeds or contracts showing sales to insiders or below market value, written demands for an accounting that went unanswered, and the trust instrument showing what the trustee was required to do. Testimony from other beneficiaries, appraisers, or accountants can support the documents.

Can the trustee be suspended immediately?

The court can suspend a trustee's powers on an order to show cause if the papers make a credible showing that trust property is in danger. The trustee is still entitled to be heard before a final removal.

Who pays the legal fees?

The petitioner pays his or her own attorney up front. Filing fees in Surrogate's Court are modest; legal fees are the main cost, and a contested proceeding with a hearing can run well into five figures. If the petition succeeds and benefited the trust, the court may direct that the petitioner's reasonable fees be paid from the trust under SCPA 2110, and may charge the removed trustee's defense costs against the trustee personally. If the petition fails, the trustee's defense costs are ordinarily paid from the trust, which reduces every beneficiary's share, and a petition found to be frivolous can draw sanctions under 22 NYCRR Part 130.

Can a co-trustee remove another co-trustee?

Not on his own. A co-trustee who believes the other trustee is acting improperly must petition the court, and has a duty to do so if the misconduct threatens the trust. Sitting silent can expose the co-trustee to liability.

Can I remove a trustee because we do not get along?

No. Under Matter of Duke and the cases that follow it, friction between trustee and beneficiary is not a ground for removal unless it has prevented the trust from being properly administered.

Does a trustee who is also a beneficiary have a conflict that justifies removal?

Not by itself. Settlors routinely name a child or spouse who is also a beneficiary. Removal still requires proof of misconduct, such as the trustee-beneficiary paying himself distributions the instrument does not authorize.

Does the removed trustee have to account?

Yes. The decree of removal ordinarily directs a final account, and the successor trustee or the beneficiaries can compel one under SCPA 2205 if the removed trustee does not file it.

How we can help

The Law Offices of Albert Goodwin handles trustee removal petitions, defenses to removal petitions, compulsory accountings, and surcharge proceedings in the Surrogate's Courts of New York City and the surrounding counties. We review the trust instrument, assess whether the facts meet the Duke standard, and advise whether a removal petition, a compulsory accounting, or a negotiated resignation is the right first step. We also represent trustees who have been served with a removal petition. For broader trust matters, see our New York trust attorney page. Call (212) 233-1233 to schedule a consultation.