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Removing an executor from office

| Aug 30, 2019 | Estate Planning And Probate

It might be easy for many in New York to assume that the most important people involved in the administration of an estate are the beneficiaries. Yet in actuality, a strong case might be made that it is the executor who plays the most important role. After all, it falls to the executor to ensure that the wishes of the settlor (as stipulated in the settlor’s estate instruments) are carried out. This brings with it a fiduciary duty, which (as detailed by the Cornell Law School) can result in serious penalties if breached.

Exactly how an executor might breach their fiduciary duty may be open to debate. Ultimately, their obligation is to the settlor (as their role is specifically to administer the settlor’s estate as dictated). Yet they also may be accountable to those who are party to the estate. If such a party feels that an executor has failed to fulfill their designated duties, they can petition for them to be removed from the office.

Per New York’s Surrogate Court Procedure Act, the reasons for removing an executor from their office include:

  • Them becoming unable or unqualified to fulfill the duties associated with the role
  • Wasting or improperly applying assets of the estate
  • Willfully and wantonly neglected their duties as executor
  • Removing property of the estate without the approval of the court
  • Failing to notify the court of a change of address within 30 days of relocating
  • When substance abuse, dishonesty, improvidence or a want of understanding make them unfit for the role

The settlor might also include stipulations in their will that dictate scenarios in which the executor might be removed from their office. If a removal is ordered, the court will typically name another executor (if one’s will does not stipulate how they are to be replaced).

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