A fiduciary of an estate refers to an Executor or Administrator. The estate fiduciary can be removed if he breaches his fiduciary duty. The Surrogate’s Court Procedure Act (SCPA) contains a number of provisions concerning the circumstances in which a fiduciary can be removed.
SCPA Section 711 entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct” provides a number of grounds whereby a fiduciary can be removed. The New York Probate Lawyer Blog has posted numerous articles regarding the breach of fiduciary duty and the revocation of letters of testamentary or letters of administration.
A recent case decided by Suffolk Surrogate John M. Czygier, Jr. on August 15, 2017 entitled Matter of Kemper, provides a good example of a situation where the Court removed an executor. In Kemper, a petition was filed with the Suffolk County Surrogate’s Court to remove the executor of the decedent’s estate.
During the course of the removal proceedings it was determined that the executor had felony convictions for manslaughter and also for credit and fraud and using counterfeit currency. SCPA Section 707 1(d) provides that a felon is not eligible to be appointed as a fiduciary. In Kemper, the Court found that the executor had violated SCPA 711(4) since his failure to advise the Court regarding his felony convictions was a falsity regarding material facts.
The Court also found that the executor had acted properly by distributing estate assets to a party who did not have a right to receive the distribution. Also, it was determined that the Executor had failed to timely pay estate taxes which subjected the estate to interest and penalty charges. In view of the above circumstances, the Court suspended the Executor’s letters testamentary.
Estate settlement requires that administrators and executors act properly in carrying out their fiduciary duties. When a fiduciary duty is breached, parties that are interested in the estate can seek to have him removed. I have represented may fiduciaries and beneficiaries in cases regarding Estate responsibilities. Call me now for a free discussion if you have a question regarding the settlement of an estate.
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.