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Misconduct must be shown to remove an estate administrator.  In re Matter of Estate of Corey, 65 Misc.3d 524 (N.Y. Surr. Ct. 2019)


Once an administrator has been appointed, SCPA § 711 provides that they can be removed or suspend under specific circumstances.  In In re Matter of Estate of Corey, the  Surrogate’s Court was to remove an administrator because he allegedly exceeded the scope of his fiduciary duties and responsibilities.

The decedent died on July 8, 2018 at the age of 92. She was survived by three children and two grandchildren. She was intestate and left an estate valued at about $30,000,000.  All of the beneficiaries were eligible to serve as administrator.  However, they all agreed that attorney Markello should be appointed administrator.  Because Markello was not a beneficiary of the decedent’s estate, all of the beneficiaries had to approve his appointment.  Letters of administration were issued to Markello on August 8, 2018.

However, less than a year later, one of the children of the decedent filed a petition seeking to have Markello removed as administrator and to have himself appointed as successor.  Some of the decedent’s heirs supported his petition, while others did not.  Markello also opposed it.

The reasons that the petitioner gave for removing Markello include:

  1. Those who held 75% of the beneficial interests in the estate revoked consent to Markello’s acting as the administrator of the estate, and
  2. Markello’s actions exceeded the scope of his duties and responsibilities

New York law allows the court to remove administrators for various reasons including wasting assets, damaging property, dishonesty, drunkenness, failure to follow order of the court, failure to advise court of a change of address, and removing estate property.  While  SCPA § 711 allows removal, courts do so only sparingly.  In other words, there must be substantial evidence to support removal before a court will do so.  The petitioner bears the burden of proof that there is a good reason for removal and doing so would be in the best interests of the estate.

Revocation of approval.  The primary reason that the petitioner wants the administrator removed is that those holding the majority of interest in the estate no longer approve of Markello being the administrator.  The petitioner’s argument is that because the consent of the beneficiaries was required in order for Markello to be appointed, the withdrawal of consent of most of the beneficiaries is all that is necessary to remove Markello.  The petitioner further argued that if the majority of the beneficiaries revoked their consent to being an administrator, cause is not necessary.

While this argument may seem logical, the court could find no legal basis for it.  The laws does not say that once an administrator has been appointed under SCPA § 1001(6) and with the consent of the beneficiaries, the only thing that is necessary to remove them is the revocation of consent by any of the beneficiaries. Because the petitioner did not present any statutory or case law to support his argument, the court dismissed it as without merit.

Exceed scope of duties.  The alternative argument that the petitioner made for removing the administrator was that Markello’s actions exceeded the scope of his duties and responsibilities. The petitioner argues that approval of Markello’s appointment was predicated on him performing specific tasks.  Instead of performing those tasks, Markello has performed others.

In reviewing the evidence, the court concluded that petitioner’s real issue is that he and Markello had a conflict.  The petitioner did not like the way Markello was going about managing the estate and had shown that he was loathe to cooperate with Markello.

The court explained that the law does not allow for removal of an administrator simply because he has a conflict with a beneficiary.  An administrator can be removed only upon the showing of actual misconduct.  The petitioner has shown no evidence of misconduct.

For the reasons stated, the Surrogate’s court dismissed the petitioner’s petition to remove Markello.



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