When you sit down to write your last will and testament you will have to choose an executor, sometimes called a personal representative or an administrator, to manage your estate after you’re gone. As long as you choose someone who is capable and willing to serve, the New York Surrogate’s Court will usually accept your decision. In most situations, executors choose people who will perform their duties diligently, and there’s no reason for estate beneficiaries to ever challenge the executor’s actions.
However, in other situations, representatives don’t perform their jobs as well as they should. Executors have a responsibility to manage the estate dutifully, and if they fail in their duties, the beneficiaries can seek to have them removed.
In general, Surrogate’s Courts in New York give the chosen executor a lot of deference, and it takes convincing evidence to show that an executor has failed in his or her duties. Your estate planning attorney will give you advice and guidance about the executor removal process, but here are several common reasons why executors are removed.
Ineligibility
When a person writes a will, he or she can choose almost anyone to serve as an estate administrator. Any capable adult can serve as long as they person is willing.
However, between the creation of the will and the time when the executor must serve, it’s possible for the executor to become ineligible. Ineligibility can result for several reasons, but is often due to a decline in abilities as a result of age, illness, or injury. Substance abuse, dishonesty, and even a lack of understanding can also lead to executor removal.
Failure to Comply
Executors are chiefly responsible for managing the estate property, taking an inventory, and ensuring that estate property is properly transferred to creditors or inheritors. During all of that, executors will have to follow specific rules and procedures as established by New York probate law and the Surrogate’s Court. Failing to comply with these established rules or refusing to follow the directions of the court can result in an executor being removed from his or her position.
Mismanagement
In the course of an executor’s duties, they often have to manage a lot of money and property. The estate settlement process can also take considerable time, and during that time the executor has to manage the estate property diligently. An executor who invests estate property in a manner not authorized by law, or who performs his or her duties dishonestly, rashly, or incompetently can also be removed.
Probate is complex, and even the most responsible person needs legal advice to perform the duties of an executor adequately. Though there is no law that requires it, all executors in New York should hire probate counsel to advise them. Failing to have a probate lawyer provide advice is often a sign that the executor is mismanaging his or her responsibilities.
Michael Robinson, Estate Planning Attorney
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