New York Probate Lawyer Blog
The appointment of a fiduciary in New York can take many forms. When a person dies and leaves a Last Will and Testament the document typically designates the appointment of an Executor. After a Will is admitted to probate, Letters Testamentary are issued to the Executor. If a decedent does not have a Will and dies intestate, then an Administrator is appointed after the conclusion of proceedings for Letters of Administration. As to trustees, there are different types of trustees. A testamentary trustee is appointed to oversee a trust which is created in a Will. A trustee of an inter vivos trust is responsible for a trust created outside of a Will such as a revocable or living trust.
In all instances, fiduciaries such as Trustees, Executors and Administrators must act properly and uphold their fiduciary duties. They have certain powers and authority which is granted by the document and also by New York estate and trust statutes. Estates, Powers and Trusts Law section 11-1.1 entitled “Fiduciaries’ powers” provides many of the powers which can be executed. Fiduciaries generally owe various duties which prevent conduct such as self-dealing or using funds for personal reasons. When a fiduciary acts improperly they can be found to have breached their fiduciary duty. Such a breach can result in a fiduciary being suspended or removed and also personally liable for any transgression.
One of the primary statutory provisions concerning misconduct by an Administrator, Trustee or Executor is Surrogate’s Court Procedure Act section 711 entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct”. This statute lists 11 categories of conduct or situations in which suspension or revocation may occur. Typically, a person interested in an estate or trust would file a petition with the Court seeking the appropriate relief. The petition should be as specific as possible when describing the conduct or reasons whereby the Court should take appropriate action.
It is not easy to remove or suspend a fiduciary. A hearing is required and the Court will not accept just general conclusory allegations. There is a preference to allow an appointed fiduciary to serve since the appointment reflects the intentions and desires of the person who created the Will or Trust.
Removal proceedings can be very complicated and the assistance of an experienced New York trust and estate lawyer may be very important. A recent Manhattan estate case entitled “Estate of Naomi Wahrman” decided by Manhattan Surrogate Rita Mella on July 25, 2025, involved a petition to remove an Executor of an estate by a trustee of trusts created under the decedent’s Will. The Executor’s attempt to dismiss the proceeding was rejected by the Court. The Surrogate found that the trustee was an interested person and had a standing to file the petition. It was also found that the petition stated a claim for the requested relief.
I have been representing parties in estate and Surrogate’s Court cases for over 40 years. Do you have a question regarding an estate or trust? Call me now for a free confidential review of your issue. We provide reasonable and flexible fee arrangements and personal representation.
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.