New York Courts Prefer to Appoint Executors Selected by the Testator

Previous posts in the New York Probate Lawyer Blog discussed various issues concerning the qualifications of person to serve as an Executor or other fiduciary. Reference was made to New York Surrogate’s Court Procedure Act Section 707 which is entitled “Eligibility to receive letters.”

Notwithstanding the basic statutory qualifications, many situations arise where a person attempts to object to the appointment of an Executor named in a Last Will. For example, if a testator executes a Will and bequeaths his entire estate to his companion, and names the companion as the Executor, the children may object to the appointment. However, unless the children can demonstrate by particular evidence that the appointment was due to overreaching, or fraud or undue influence or some other improper factor, the Courts will honor the testator’s intention and appoint the nominated fiduciary.

This very situation recently arose in a case entitled “Will of Rudolph M. Barboni“, decided by Nassau Surrogate Edward W. McCarty III on April 25, 2013 and reported in the New York Law Journal on May 20, 2013. In Barboni the decedent named his friend as sole legatee and primary executor. Since the decedent’s children were only named as contingent beneficiaries they did not benefit from the Will. Since the children were contemplating Estate Litigation in the form of a Will Contest, they objected to the friend’s appointment as a Preliminary Executor.

The Court rejected the children’s attempt to prevent the appointment of the friend as a Preliminary Executor. It found that the children did not present any bona fide claims of wrongdoing or undue influence. Instead, the Court said that the children’s assertion of mere conclusory allegations were insufficient to defeat the testator’s nominated choice for appointment.

As noted in prior blogs, the selection of an Executor and other fiduciaries is an important part of estate planning. This is particularly true where litigation in the Surrogate’s Court may be expected in a Probate Proceeding or other Court proceeding. Therefore, it is important to review these issues with a New York Estate Planning Lawyer so the various problems and options concerning the naming of a fiduciary can be discussed. In some situations, it may be prudent to attempt to avoid the probate process and to create and fund a Living Trust. Such a Trust can function during the creator’s life and act as a Will substitute by providing for an automatic disposition to named beneficiaries upon the creator’s death. If a Will does not need to be probated, there is less opportunity for disgruntled family members to complain about the creator’s choice of fiduciaries. A Living Trust is just one example of alternative solutions that are available to meet the estate planning needs and desires of New Yorkers.

An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution and Will contests. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email:, for an initial consultation.

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