How to Remove an Executor: Removing an Executor of an Estate in New York
An executor of an estate has an important role to oversee the last will and testament of the deceased person who wrote the will. Often, the testator, the person who wrote the will, names an executor during the will and estate planning process.
Sometimes, the testator will have asked the person named as executor if they want to perform the duties and responsibilities this role requires. Other times, the named executor may have no idea they were given this task.
Regardless of whether executor knew ahead of time or after the death of the testator, as long as they are able to carry out the required duties, then they are not easily removed. These duties include, but may not be limited to:
- Inventory All Assets
- Maintain the Value of All Assets
- Keep Accounting and Other Business Records
- Probate the Will in Surrogate Court
- Pay All Creditors with a Claim on the Estate
- Pay All Income and Estate Taxes
- Distribute the Remaining Assets to Beneficiaries
In addition, they must provide reports and documentation as requested by the New York Surrogate Court, which is also called the New York Probate Court. The executor has to also obtain permission from the court to perform various duties like liquidating assets to pay debts or distributing certain assets or money immediately to surviving spouse and minor children.
Furthermore, beneficiaries may request the executor provide detailed records and share updates about the status of the probate process. The executor has to comply with these requests in a timely manner.
Who Can Be An Executor of an Estate in New York?
To qualify as an executor, the minimum requirements required by law are:
- 18 Years of Age or Older
- No Felony Convictions
- A United States Citizen or Legal Living Resident of New York
- Not Incapacitated or Not Adjudicated
Executors should also be good at math and communications since they will need to prepare a variety of financial records, reports, and communicate with the court and the beneficiaries. Sometimes the testator will name a trust company, financial institution, or law firm as the executor of their will, which is also acceptable.
Valid Reasons for Removing an Executor of a Will in New York
The New York Surrogate Court has created a Procedure Act which details the valid reason for removing an executor from a will in Section 711. These reasons include:
- Executor Misconduct: If the executor behaves in such a negative or poor manner where he should no longer be the executor like filing for bankruptcy.
- Mismanagement or Wasting of Estate Assets: The executor is not managing or maintaining the assets as required.
- Convicted of a Felony: The executor has been convicted and found guilty of a felony in the past.
- Stealing Estate Assets: The executor has been stealing money and other assets from the estate.
- Substance Abuse: The executor has a substance abuse problem that is affecting their ability to perform their duties.
- Lacks Mental Ability/Capacity: The executor is not of sound mind or lacks the mental ability/capacity to carry out their duties.
- Misleads/Lying to the Surrogate Court: The executor is not being honest with the court in some manner like lying about the current value of the estate’s assets.
- Failure to Comply with a Court Order: The executor does not perform duties ordered by the Court.
- Not Eligible: The executor is not eligible to be an executor of a will in New York like they have not yet turned 18 years of age.
- Contingency Requirement Met: Once the executor fulfills his duties, which is called a contingency, the executor must stop being the executor.
- Fails to File Change of Address: If the executor moves and fails to notify the court of their new address, they could be removed.
- Becomes Disqualified: An executor was initially qualified, but some event has occurred which now makes them disqualified to continue as the executor like developing a substance abuse problem.
- Removes Assets/Property from New York: The executor is removing assets and property from New York without the court’s permission or beneficiary waivers.
- Unfit to Perform Executor Duties: There is some issue about the moral standing of the executor which makes them unfit. The court will determine this reason on a case-by-case basis.
- Failure to File Records/Documentation: The executor is not providing the required records and documentation to the court and/or beneficiaries in a timely manner.
- Violates the Terms of a Testamentary Trust: The will included a testamentary trust and the executor is violating the terms of that trust.
Removing an Executor from Probate Processes Is Not Easy
As you can imagine, the above reasons are in place to make it difficult to easily remove an executor from probate processes and required duties. Many of the reasons are often subjective in nature, which means the court handles them on a case-by-case basis. The court may not agree with the person who requests the removal of the executor.
However, if you have sufficient evidence to support one or more of the qualifying reasons for removing an executor from probate processes, then it is possible to get them disqualified. To be successful in your endeavors, you will want to get help from a qualified New York wills and estate lawyer to present your evidence to the Surrogate Court.
Reasons Why Beneficiaries Try to Remove an Executor
The reasons why beneficiaries sometimes attempt to remove an executor from a will do not always align with the legal reasons as defined in Section 711 of the New York Surrogate Court’s Procedure Act. Some of the more common ones include:
- The executor is not a relative.
- The executor is a family member who dislikes me.
- The executor is too young.
- The executor doesn’t live in New York.
- The executor is too old.
- The testator made last-minute verbal changes to their will that the executor is refusing to follow.
- The executor is my step-mother/step-father.
- The executor has problems managing money.
- The executor once stole from me, so they will steal from the estate.
- The executor is not returning my phone calls or emails.
- The executor owed the testator money and never paid it back.
- The executor seems untrustworthy.
- The executor has no experience managing finances.
- I know the deceased person’s intentions, and they wanted me to handle their estate, not the executor.
- The executor manipulated the testator to change their will and cut out many of the beneficiaries before they died.
- The executor is playing favorites with our brother because we are siblings and ignoring me and my sister.
Even though one might have personal reasons for removing an executor, the court is not going to remove them as long as they are fulfilling their duties and there is no supporting evidence to indicate otherwise.
How Do You Change the Executor of a Will?
If the testator is still alive, they simply have to speak to their wills and estate planning lawyer and have their will updated with a new executor. Sometimes, the original executor may no longer be fit to perform the duties and responsibilities required.
Other times, there could be personal issues, where the testator and named executor are no longer on speaking terms. Depending on when the will was originally written, the original named executor could have died before the testator.
Ideally, one should review their will, named executor, and beneficiaries once every few years to see if any changes or updates are needed. Keeping a will updated can also help avoid disputes by surviving family and friends later when the will is probated in court.
Removing an executor of a will after the testator has died can be more difficult. The person or persons who want to remove the executor must first be able to prove to the Surrogate Court in New York that they are not fit to serve as executor based on one of the allowed grounds as detailed in Section 711 of the New York Surrogate’s Procedure Act.
However, as long as your reasons for wanting to remove the executor from the will align with one or more of the ones in Section 711, then there is a higher probability the court will remove the executor.
Since removing an executor from an estate in New York can be complex, you do need to get help and assistance from a qualified New York probate lawyer. If the executor is removed, keep in mind, the court will decide who will be assigned as the new executor of the estate, not you or the other beneficiaries.
To find out if you have grounds to remove an executor from an estate in New York, or to change or update the executor with a review of your will and estate planning process, please feel free to contact Joseph A. Ledwidge PC at 718-276-6656 today!
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