New York Probate Lawyer Blog
The appointment of an Executor or Administrator of an estate begins the process of the settlement of an estate. An Executor is appointed when a decedent leaves a Last Will and Testament which has been admitted to Probate in the Surrogate’s Court. There are Surrogate’s Court’s throughout New York State including the New York County (Manhattan) Surrogate’s Court, the Bronx County Surrogate’s Court, the Kings County (Brooklyn) Surrogate’s Court and the Queens County Surrogate’s Court. An Administrator is appointed when a Decedent does not have a Will and dies intestate. In these cases a Decedent’s distributees (heirs at law) inherit the estate. The New York Probate Lawyer Blog contains many articles regarding estates and fiduciaries.
The Court appointed Administrator or Executor and also Trustees have many obligations and powers. The obligations include duties of fairness to beneficiaries and to not take advantage of the appointment to benefit themself. A fiduciary cannot comingle estate or trust funds with his personal funds and cannot use fiduciary assets for personal purposes or personal expenses. A fiduciary has many powers which are given by the Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciaries’ powers”.
As a trusts and estates lawyer for over 45 years, I have encountered many situations where an issue arises concerning fiduciary conduct and whether the appointment of a fiduciary should be revoked by a Court. These cases can be very complicated. The Court requires that specific acts and facts of wrongdoing be shown for removal. It is not enough for a beneficiary just to say that he does not like or get along with the executor or trustee.
The Surrogate’s Court Procedure Act contains a number of statutes which provide specific grounds for the disqualification or removal of a fiduciary.
New York Fiduciary Removal Statutes – SCPA Section 711 entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct”, provides a list of twelve (12) situations where a Court may revoke, suspend or modify letters which have been granted to a fiduciary such as an Administrator. This list includes circumstances where a fiduciary has improperly used assets or wasted assets or disobeyed a Court Order.
SCPA 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”, is another statute which delineates instances where fiduciary letters such as Letters Testamentary can be revoked or suspended. These items include the failure of a fiduciary to file an accounting when ordered to do so.
The Court Procedure – simply stated, the removal process requires that a petition be filed with the Court setting forth with particularity and proof the basis for the requested removal. The Court will review the petition and issue either a Citation or Order to Show Cause requiring the fiduciary to appear before the Court, along with other interested parties, to respond to the allegations. The fiduciary is entitled to a hearing before being removed except in extreme cases.
While there are many New York removal cases, a fiduciary removal was recently upheld in an Appeal in a Connecticut case entitled “John J. Stroll, Jr. v. Bettina Gloria Stroll Pass Et Al (AC 47165) In Re Probate Appeal of John J. Stroll, Jr. (AC 46635)”. In Stroll, it was found that the fiduciary had among other actions failed to provide an accounting as Ordered by the Court failed to explain the disappearance of jewelry, improperly used decedent’s credit cards after death and improperly withdrew funds using a defunct Power of Attorney. It is clear to see why removal occurred.
I have represented fiduciaries and beneficiaries in removal cases for over 40 years. Do you have a question concerning a Surrogate’s Court or estate case. Call me now for a free confidential review. We provide reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estate Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has questions regarding these matters, please contact me at (212) 355-2575 for initial free consultation.