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Court Denies Request for Revocation of Letters- In re Estate of Haber, 2011 NY Slip Op 50199 (N.Y. Surr. Ct. 2011)


In a contentious probate case, the specific issue that is before the Surrogate’s Court is whether it should revoke the letters of the preliminary executor based on misrepresentations and negligence.

Under New York law, regardless of who a testator nominates in his (or her) will to serve as executor of his estate, the Surrogate’s Court will only appoint that person if he is qualified.  In order to serve as an executor, the person must be at least 18 years old, must be a U.S. citizen or legal resident living in New York, must not have been adjudicated to be incapacitated, and must not have been convicted of a felony.  After being appointed, the Surrogate’s Court can revoke an executor’s authority upon a finding that he is no longer qualified because of negligent or improper management of the estate, or that he is no longer capable of managing the estate. Examples of actions that would be grounds for removing an executor include stealing of assets from the estate, mismanagement of estate assets, failure to pay creditors, failure to timely account to beneficiaries, or substance abuse.

In the Estate of Haber, the Surrogate’s Court appointed E. Haber as the preliminary executor after a prior preliminary administratrix was removed by the court.  E. Haber is also the half-brother of the objectants.  In an effort to convince the court that E. Haber was not fit to serve as executor, the objectants cited several actions of E. Haber as grounds for removal.  In his place, the objectants wanted the court to either appoint one of them as executor, or a third party.

The objectants accused E. Haber of essentially stealing from the estate by removing $20,000 in cash from the decedent’s safe deposit box soon after his death and refusing to return it to the estate until the court directed him to do so.  The objectants accused E. Haber of engaging in fraudulent behavior by entering into a marriage solely for the purposes of immigration.  They stated that he was incompetent and did not have the experience or ability to manage the decedent’s business interests.   Furthermore, the objectants contend that he failed to properly file tax returns.  In addition, the objectants accused E. Haber of thwarting attempts to give the decedent a proper memorial service.

E. Haber responded to each accusation.  He contended that the accusations of the objections were misrepresentations of the facts.  He also noted that some of the issues that they complained about had some truth to them but were the result of actions by the preliminary administratrix who was removed.  He also pointed out that the actions of the objectants made it difficult for him to performs some of his duties as executor. He concluded that basis for the petition to have him removed was the long-standing acrimony that his three half-siblings had towards him.

The Surrogate’s Court agreed with E. Haber, noting that some of the objections raised had already been addressed in a prior Surrogate’s Court proceeding, that other issues were moot as they did not result in any damage to the estate, and that there was no evidence to support the remaining contentions of the objectants.  As a result, the court denied the objectants petition to remove E. Haber as the preliminary executor.

It is not unusual for objections to an executor or other estate litigation to be based more on family animosity than substantiable facts.  Because estate litigation will delay probate and result in added expense, it is important to present the court with provable allegations.

Here, the court concluded his opinion by urging the parties to stop with the constant estate litigation  and focus on proceeding with the actual administration of the estate.

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