Fiduciary Removal

In New York, fiduciaries are appointed for the administration of estates and trusts. Fiduciaries include executors, trustees, administrators, and preliminary executors. They owe beneficiaries a very high standard of care. They must abide by the law and the terms of the applicable will or trust in performing their duties. If they do not, they may be subject to fiduciary removal proceedings. New York City estate litigation attorney Jules Haas has represented fiduciaries, beneficiaries, and estate executors in situations that gave rise to fiduciary removal, and is available to answer your questions.

Certain circumstances can justify the removal of a fiduciary. When a fiduciary acts in a negligent or improper way, a beneficiary may claim there was a breach of fiduciary duty. The beneficiary may try to have the fiduciary removed or have the fiduciary’s powers modified or suspended. Generally, revoking authority altogether, which is equivalent to removing the fiduciary, is considered a serious change to the fiduciary’s authority and it’s only done in the event of seriously harmful misconduct. Where the circumstances are less serious, the court may modify or suspend the fiduciary’s authority. The removal of the fiduciary is within the Surrogate’s Court’s discretion. However, statutes specify a range of grounds based upon which a fiduciary may be removed.

If a fiduciary is appointed by the Surrogate’s Court, the judge issues the fiduciary letters, which are proof that the fiduciary is legally authorized to take certain actions. There are different ways to proceed to get a fiduciary removed or have his powers suspended, modified, or revoked under the New York Surrogate’s Court Procedure Act. Fiduciary removal can proceed under the Surrogate’s Court Procedure Act section 711 or section 719. A knowledgeable estate litigation lawyer can represent you in proceedings of this kind.

Under section 711, the court can revoke, modify, or suspend fiduciary letters for a host of different reasons that constitute misconduct or warrant disqualification. Grounds for petition include waste or improper application of the assets of the estate. Grounds also include unauthorized investments or misconduct in executing the office. They can also include dishonesty, want of understanding, improvidence, and drunkenness. It is also possible to pursue revocation or removal where the grant of letters was secured through a false suggestion of material fact. Another ground for revocation includes a fiduciary’s willful refusal to obey the court’s lawful direction related to the discharge of his duties.

Under section 719, letters may be revoked, modified, or suspended, and a lifetime trustee may be removed or have his powers suspended or modified without process where certain grounds exist. Grounds for removal under this section can include when a fiduciary fails to appear upon the return of process without showing a satisfactory reason, and a judge has enough reason to think there’s no legitimate excuse for it. A fiduciary can also have letters revoked if he doesn’t file an account after being ordered to do so. Another basis for action under section 719 is when a fiduciary defaults in giving information about the estate’s assets or the affairs of the estate in accordance with court orders. Still another ground is when a fiduciary has been convicted of a felony, was judicially committed, or when a court has declared him incompetent. Another ground for removal is when a fiduciary mingles estate funds with his own, or deposits them in an account other than as a fiduciary of the trust or estate.

Although there are many grounds for removal set forth under the statutes, the New York Surrogate’s Courts don’t readily remove a fiduciary that was nominated by a decedent. Rather it will try to respect the choice in fiduciaries made by the person who executed the will or trust.

The Surrogate’s Court has discretion over whether to accept a request for removal, and whether to temporarily suspend a fiduciary’s authority while the matter is pending. It also has discretion over removal. The conduct at issue has to be truly harmful to result in a full removal.

In New York City, fiduciary removal is a serious proceeding. It’s advisable to retain an experienced lawyer to represent you whether you are being challenged as fiduciary or you are trying to get a fiduciary removed. Mr. Haas possesses over three decades of experience representing people in New York City estate litigation. He represents people in Queens, the Bronx, and Manhattan, Kings, Richmond, Nassau, Suffolk, and Westchester Counties. Please call us at (212) 355-2575 for a free consultation, or contact us through our online form.