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Executor Removed for Failure to Follow Order of the Court – In re Delaney, 2018 NY Slip Op 32755(U) (N.Y. Surr. Ct. 2018)


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.

The Surrogate’s Court reviewed the law related to suspending or revoking the authority of fiduciaries such as executors.  Under the Surrogate’s Court Act § 711, the Surrogate’s Court can suspend the authority of an executor for a variety of reasons, one of which is willfully failing to obey an order for the court.  By distributing more than $50,000 from the estate, A. Porter failed to follow an order for the court.  There is no indication that she had good cause to do so.

The court went on to explain why in this case the court had to suspend A. Porter’s authority without a hearing.  Because she distributed over $145,000 from the estate more than she was allowed, A. Porter showed “serious misconduct” that threatened the estate.  Thus, it was appropriate to immediately revoke her authority.

While Delaney was about an executor failing to follow an order for the court, there are several other grounds for revoking the authority of an executor.  Each of the grounds is related to the executor making decisions that put the estate in jeopardy.  For example, the Surrogate’s Court can suspend or remove an executor who wastes estate assets or makes improvident investments with estate property.  Similarly, if the executor puts the value of the estate at risk by damaging  estate property or removing estate property without authorization, the court can remove him.  If the executor is found to show a propensity toward drunkedness or dishonesty, the court can remove him.  If the executor is no longer qualified because, for example, he becomes incapacitated or is convicted of a felony, the Surrogate’s Court can revoke his authority.

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