A person who is appointed as an estate Administrator or Executor is empowered to perform many tasks on behalf of a decedent’s estate. Generally, the fiduciary identifies and collects assets; resolves and pays the decedent’s debts and obligations; satisfies estate administration expenses such as estate and fiduciary income taxes; and provides an accounting and distributes the net estate to the beneficiaries. The New York Probate Lawyer Blog has published many articles describing and examining the estate settlement process.
Along with their administrative powers, fiduciaries also have many obligations sometimes referred to as fiduciary duties. In cases where there is a breach of fiduciary duty, the Surrogate’s Court can revoke the letters of appointment and remove a fiduciary from office.There are estate laws that deal with the removal of fiduciaries. Surrogate’s Court Procedure Act (SCPA) Section 711 entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct” and SCPA Section 719 entitled “In what cases letters can be suspended, modified or revoked, or a lifetime trustee removed or his powers suspended or modified, without process”, both provide specification as to circumstances warranting the removal of a fiduciary.
Typically, New York City Estate Lawyers are aware that the Surrogate’s Courts are reluctant to revoke letters unless the transgressions by the administrator or executor are clear and meet the statutory requirements. However, when the circumstances warrant, the Court will issue a removal Order.
Two recent cases decided by local Surrogates reflect some of the issues in these types of cases. In Estate of Drake which was decided by Bronx Surrogate Nelida Malave-Gonzalez on June 1, 2017, one co-executor sought the revocation of letters testamentary that had been issued to his sister and co-executor. Although the Court found that the sister may have improperly removed and transferred the decedent’s car, the Court noted that such conduct was not a danger to the estate and that the car’s value was small. The transfer of the car was essentially not serious misconduct and did not require her removal. Additionally, the Court deferred any issues regarding the sister’s alleged delay in finalizing estate settlement to the estate accounting proceeding.
In a separate case decided by Suffolk Surrogate John Czygier, Jr. on May 31, 2017, entitled Estate of Barletta, the Court suspended letters of administration that were issued to the administrator. The Court found that the fiduciary failed to create an estate account to hold estate assets and that the administrator used estate funds to pay personal expenses.
I have represented fiduciaries and beneficiaries in removal proceedings. The cases can be complex and the Court will allow discovery of documents and testimony and usually hold a hearing regarding the assertions of fiduciary misconduct. Call me now if you have any questions regarding breach of fiduciary duty or removing an executor or administrator.
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.