Mar 18, 2022 Reasons to Remove the Executor of an Estate
One of the most important decisions when making a last will and testament (“Will”) is who to name as the executor. Most people name a spouse, child, or other family member as executor because it seems logical to name a close relative to oversee the management and distribution of assets to loved ones and others who may inherit by the will. But the executor of an estate is required to make significant financial judgments that may create disharmony among family members who may disapprove.
The attorneys at Ely J. Rosenzveig & Associates provide valuable guidance to testators (makers of wills) who need to nominate competent and trustworthy executors to administer their estates when the time comes. Our law firm delivers comprehensive legal counsel and complete elder law and estate planning services to clients who want to arrange for the disposition of assets after their death or incapacity. Consulting with the experienced estate lawyers at Ely J. Rosenzveig & Associates is essential to planning a sound transfer of wealth to the next generation.
What Does the Executor of a Will Do?
When someone with a Will dies, the person named as executor is responsible for identifying and gathering all estate assets, wherever they may exist and in whatever form. The executor also pays any taxes or other valid debts of the decedent as well as those that the estate may incur until it is finally settled. The executor must manage and account for all the assets responsibly as they fulfill the wishes of the testator regarding how, when, and to whom the estate’s net assets are distributed.
Removing the Executor of an Estate in New York
In New York, removing an executor requires substantial evidence of specific grounds set out in the statute that governs their disqualification. Our state’s courts treat the removal of an executor as a very serious step to be taken only in rare circumstances. The courts have ruled that removing an executor annuls the testator’s choice, and should be granted only when the grounds are clearly established or on a clear showing of serious misconduct that endangers the safety of the estate.
If a testator lawfully nominates a person to act as executor of their Will in New York, then that person may serve if they meet these criteria:
- they are at least 18 years old,
- they are U.S. citizens residing in New York,
- they are not adjudged to be incapacitated, and
- they never suffered a felony conviction.
The executor can be an individual or a corporate entity like a bank, an accounting firm, or a law firm.
Probate matters in New York are handled by the Surrogate Court. The Surrogate Court appoints the executor named in the Will if they meet the standard criteria and if they are not otherwise disqualified. The power and authority granted to the appointed executor can only be revoked by a court after evidence clearly establishes that the executor acted improperly or illegally or has become incompetent by virtue of some physical or mental incapacity, abuse of a controlled substance, or otherwise endangers the estate’s assets.
Who Can Remove an Executor?
Only a party who has an interest in the estate has standing to seek to have an executor’s letters of appointment revoked. Parties have an interest in the estate if they have a chance to gain or lose something of value depending on the way the probate estate is administered. Potential beneficiaries, creditors, and coexecutors of the estate are typically the interested parties who commence these proceedings.
Grounds for Removal of an Executor in New York
New York follows a policy of respecting the testator’s choice of executor as stipulated in their Will. The Surrogate Court will not easily substitute its judgment for the decedent’s unless clear evidence is presented that demonstrates the existence of a genuine threat to the estate, including but not limited to these:
- theft of estate assets by the executor,
- an executor’s substantial mismanagement of the estate’s assets,
- an executor misrepresenting the state of the estate’s assets or claims against the estate,
- an executor deviating from the terms of the decedent’s will,
- an executor who is unable to fulfill their duties due to physical or mental illness or injury,
- an executor sold an estate asset for less than market value,
- an executor neglecting an estate asset, permitting deterioration of its value,
- an executor’s failure to provide an accounting of the estate’s assets and liabilities,
- an executor who is self-dealing or engaged in other dishonest activities.
Executor Removal Issue? Experienced Probate Lawyers – Ely J. Rosenzveig & Associates
Whether you are an interested party seeking to remove an estate’s executor, or you are an executor facing a petition to revoke your letters of appointment, the issues to be litigated demand that your lawyer has a deep understanding of the law and of the technical rules of the Surrogate Court.
Ely J. Rosenzveig & Associates has extensive experience and a record of success handling complex issues involving all trust and estate matters in New York’s courts. Every decedent’s estate deserves to be treated with respect and fidelity by the executor in whom the decedent placed their trust. When that trust is violated or the duties required of the executor prove to be beyond their capacity, immediate action is called for to honor the decedent’s wishes, and to preserve the estate’s assets for distribution in the manner described in the Will.
Probate cases often stimulate emotional reactions in disappointed family members who learn that the terms of the decedent’s Will are not as they expected. Pain and sadness can grow into anger that fuels suspicion and can result in legal challenges to an executor’s actions or authority.
Situations like this require the services of skilled legal counsel with a specialized practice in trusts, estates, and probate litigation.
This is a complicated legal matter, requiring an experienced estate attorney to commence the removal of the executor to ensure that the probate process continues properly and assets are preserved. It is important to act quickly when you believe the removal of an executor is warranted, before more harm is done to the assets of the estate.
Greenfield v. Jaffe, No. 2022-30221 (N.Y. Sup. Ct. Jan. 25, 2022)