New York Probate Lawyer Blog
The starting point of an estate is the appointment of an estate fiduciary. When a decedent leaves a Last Will and Testament, the Will must be admitted to probate in order for its terms to become effective. The Court typically appoints the Executor who has been nominated in the Will. Letters Testamentary are then issued. The New York Probate Lawyer Blog has published numerous articles concerning probate and estate settlement.
If a decedent does not leave a Will the Court appoints an estate Administrator. The persons who qualify for appointment are usually the decedent’s next of kin. Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration” contains the provisions regarding the appointment of estate administrators.
After an Executor or Administrator is appointed, the fiduciary takes on the responsibility of settling the estate. The decedent’s assets must be identified and collected. Unpaid bills, debts and claims need to be reviewed and contested or satisfied. Various assets such as real estate may need to be sold.
It may appear at some point during estate administration that the fiduciary of an estate should be discharged. The grounds for revoking a fiduciary appointment are varied. SCPA Section 711 entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct” sets forth eleven bases upon which removal may occur. In most instances, a Court will require a specific and factual demonstration of wrongdoing or impropriety before removal is granted. The general rule is to give preference to a decedent’s choice of executor or statutory appointee. 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” also specifies various grounds for suspending or revoking a fiduciary appointment.
The procedure to deal with these matters is provided in SCPA Section 712 entitled “Petition; process thereupon; suspension”. Typically, a petition is filed with the Surrogate’s Court which contains all of the details and available evidence which is relied upon for action against an administrator, executor or trustee. The removal process includes discovery where the litigants can obtain documents and depositions from parties and witnesses. Ultimately, the Court may hold a trial if the matter is not settled.
I have represented many clients in fiduciary removal proceedings. A fiduciary is granted many powers by the estate laws. It is not uncommon for some estate beneficiaries to disagree with or disapprove of the manner in which a fiduciary exercises such powers and authority. A fiduciary is entitled to exercise reasonable judgment. The fact that a beneficiary or someone interested in an estate disagrees with the manner in which a fiduciary acted, does not mean that there is a breach of fiduciary duty or wrongdoing. Nevertheless, there are many instances where removal is warranted.
Do you have a question regarding the settlement of an estate? Call me now for a review of your issue. We provide a free confidential review of your matter and reasonable and flexible fee arrangements.
New York Trusts and Estates 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 any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.