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Court revoked letters testamentary based on failure to perform fiduciary duties.  In re Lewner, 2020 NY Slip Op 34365(U) (N.Y. Surr. Ct. 2020)


In In re Lewner, the Surrogate’s Court of New York County was asked to revoke the authority of the administrator of an estate on the grounds that he had not been fulfilling his fiduciary responsibilities.

The decedent died on May 19, 2016 leaving an estate with a value of over $8,000,000.  The estate had an income of over $3,000,000 from its real estate holdings.  Preliminary letters testamentary were issued to respondent on June 10, 2016.

In his petition to revoke the respondent’s preliminary letters, the petitioner alleged that the respondent was unfit to serve as an administrator as demonstrated by numerous instances in which he failed to perform his fiduciary duties. SCPA § 711.  As an example, the petitioner described how in the more than four since the decedent’s death, the respondent failed to file estate tax returns, the decedent’s final income tax return, and the fiduciary income tax returns for the estate. As a result, the estate is exposed to significant interest and penalties.  In addition, the court’s records showed that the respondent failed to perform his duties as administrator including filing an inventory as required by  22 NYCRR § 207.20.

Furthermore, the respondent failed to respond to the petitioner’s allegations.  As a result, the court deemed them to be accurate.

Removing an administrator
The court does not take the idea of removing an administrator lightly.  In act, the court is generally hesitant to do so, especially when the administrator was selected by the testator. However, the court does have the power to do so if there is evidence that the person is not fit to serve. Under SCPA § 711, some of the  grounds for removal include:

  • Wasted assets. The administrator wasted assets, improperly applied assets of the estate, made illegal investments, mismanaged property, or injured estate property.
  • Failed to follow a direction of the court. An administrator is required to follow orders of the court. If they willfully refuse to or without good cause neglect to obey any lawful direction of the court, the court has grounds to remove them.
  • Fraudulently obtained letters. If the letters were granted based on a falsehood, they can be revoked.
  • Failed to notify court of change of address. An administrator is required to let the court know if they move.  If the administrator fails to notify the court of their change of address within 30 days after such change, they can be removed.
  • Removed property from the estate. If the administrator moves estate property out of the state without prior approval of the court, they can be removed.
  • Not qualified. If the administrator proves to be unqualified due to substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office, they can be removed.
  • Failure to account. An administrator is required to file an account when the court requests one. Failure to do so is grounds for removal.

Lewner administrator removal
Ultimately, the court decided to remove the respondent from his role as the preliminary administrator even though he was the testator’s choice.  The decision of the court was based on both the respondent’s actions and inaction while serving as preliminary administrator that have seriously jeopardized the estate.  The court appointed a temporary public administrator.

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