One of the reasons for a person to engage in Estate Planning and to prepare a Last Will is to provide a nomination in the Will for Executors and Trustees. When a person dies intestate (no Will) the estate laws designate the persons entitled to act as administrator. The New York Probate Lawyer Blog has published many articles regarding estate planning and estate administration.
Surrogate’s Court Procedure Act (SCPA) Section 1001 entitled “Order of priority for granting letters of administration” provides the list of individuals (i.e., spouses, children) who have the priority to be appointed as the estate fiduciary. In many instances, the individuals who have the statutory right to be appointed administrator may not have been the choice the decedent would have made.When a testator prepares a Last Will, he typically designates an executor and successor executor in the Will provisions. This allows the testator to choose the individuals he has confidence in and who he believes is best suited to settle the estate affairs. The executor can be a family member or friend or even a financial institution.
The testator’s selection of a fiduciary is most often respected and followed by the Surrogate’s Court when a Will is offered for probate. However, there are procedures to contest the appointment of a fiduciary if valid grounds exist. SCPA Section 707 entitled “Eligibility to receive letters” describes certain factors which might disqualify someone from being appointed by the Court. For example, the statute states that a felon would be disqualified. A recent case decided by Manhattan Surrogate Rita Mella on January 12, 2017 entitled Will of Srybnik also reflects the complications in attempting to prevent a fiduciary appointment. In Srybnik one of the nominated co-executors under the decedent’s Will sought to disqualify the nominated co-executor. The petitioner claimed that the co-executor should be disqualified due to a “want of understanding” regarding his fiduciary duties. The issue before the Court was whether there was sufficient evidence for the Court to make a summary determination as to eligibility. After reviewing the facts, the Court found that the co-executor’s inability to act was not clear-cut and, therefore, the Court required that the issue be determined at a trial. In the decision, the Court recognized the general rule that a testator’s choice of a fiduciary is typically respected and approved.
It is important for persons preparing their estate plan to prepare a Will and Trust and to nominate the persons they want to act as Executors or Trustees. In most instances the Court respects the choices made by the creator of the document and appoints the nominated parties.
I have represented many individuals in estate planning and the selection of Executors and Trustees. Also, I have worked with many clients in probate and other Surrogate’s Court matters concerning the appointment of an Executor or Administrator. If you have a question regarding an estate fiduciary appointment call me now for a free discussion.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Manhattan and Brooklyn. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.