When a testator nominates someone to serve as the executor of his (or her) estate, the court does everything possible to fulfill the wishes of the testator by appointing that person. Courts are loathe to substitute their judgement for that of the testator. However, if the court determines that the executor nominated by the testator is not qualified or does not fulfill the duties of the job as required by law, it has the authority to decline to appoint the person as executor or to remove that person.
In Delaney, the decedent, H. Frankowski, died in 2013 leaving three children: J. Frankowski, A. Porter, and S. Roman. J. Frankowski was appointed executor of H. Frankowski’s estate. When J. Frankowski died in 2014, the Surrogate’s Court appointed A. Porter as successor executor. There were some irregularities related to the decisions that A. Porter made as executor. As a result, on May 18, 2015, the Surrogate’s Court suspended A. Porter as successor executor and ordered that she no longer make any distributions from H. Frankowski’s estate. However, the next month, on June 24, 2015, the Surrogate’s Court issued another order reinstating A. Porter. While she was given essentially the same authority as she had previously, the court restricted the amount of money that she could distribute from the estate to a maximum of $50,000.
A. Porter filed an accounting that included disbursements that she made after May 18, 2015 amounting to $198,668.31. In response, the petitioner, K. Delaney, who was also the executor of the estate of J. Frankowski, asked the court to immediately suspend A. Porter’s as successor executor for repeated violations of orders for the court. In response, A. Porter pointed out that she was not given proper notice of her suspension as she was not served with a certified copy of the order that suspended her as the law required.