The New York Surrogate’s Court May Appoint An Alternate Estate Fiduciary When Necessary

Estate Planning Attorneys in New York are familiar with the creation of Last Wills and Trusts in which primary and alternate Executors and Trustees are named. One of the main advantages to creating a Will or Trust is that the creator can select the persons he wants to act as a fiduciary to carry out his asset distribution directions in accordance with his intentions.

As discussed in many posts in the New York Probate Lawyer Blog, if a person dies intestate (i.e., without a Last Will) then the estate administrator is selected according to the statutory priority set forth in SCPA Section 1001.After a person dies and a Will is filed with the Surrogate’s Court for probate, the Court usually appoints the person nominated in the Will as Executor. The Courts tend to respect the wishes and intentions of the testator and follow his appointment selection unless there is an actual and serious reason to by-pass the nomination. SCPA Section 711, entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct”, and Section 719 entitled “In what cases letters may be suspended, modified or revoked, or a lifetime trustee removed or his powers suspended or modified, without process”, provide various grounds upon which an executor or trustee may be disqualified or removed.

I have represented many fiduciaries and beneficiaries in Estate Litigation regarding misconduct proceedings.  There have been many cases where the Court has either removed a fiduciary or refused to appoint the person having the right to appointment. For example, in Matter of LaForgia, decided on August 4, 2016, Staten Island Surrogate Robert Gigante removed the co-executors of an estate. The Court found that the executors had ignored a number of Will provisions, that they had failed to fund various testamentary trusts created under the decedent’s Will and that the executors had violated a Temporary Restraining Order. Based upon the above conduct the Surrogate suspended the executor’s letters testamentary pursuant to SCPA Sections 711 and 719.

In another recent case, entitled Estate of Tran, decided by Manhattan Surrogate Nora Anderson on August 12, 2016, the Court was asked to allow an advance payment of commissions. While the present case did not involve the appointment of fiduciaries, the Court’s decision discussed the estate’s prior Court proceedings. Apparently, in Tran the decedent died without a Last Will and various distributees (i.e., heirs) had filed opposing petitions to be appointed as estate Administrator. Since the Court found that the parties exhibited hostility toward each other, the Court appointed a neutral temporary administrator to handle estate affairs.

While the Courts tend to follow a testator’s wishes regarding executor appointment, there are many instances where the conduct or status of a person may result in their disqualification to act as a fiduciary.  Call me now for a free discussion regarding any issues of fiduciary appointment or estate administration that you may have.

New York Trust and Estate attorney Jules Martin Haas, Esq. has been representing clients in Surrogate’s Court and estate administration in Manhattan, Queens and Brooklyn throughout the past 30 years.  If you or someone you know is involved with or has questions about Estate Settlement, please contact me at (212) 355-2575 for an initial consultation.

Jules Martin Haas provides his clients and members of the community with a free monthly e-newsletter which contains articles covering a variety of legal topics including estate planning, financial matters and real estate.  If you wish to be placed on the e-newslist, simply e-mail me at  You can cancel receiving the newsletter at anytime.

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