New York Probate and Estate Administration Lawyer Blog
When family members are fighting over a will, disputes often arise over who should manage the estate while the probate proceeding is pending. Even when a person is nominated in a will to serve as executor, a Surrogate’s Court may refuse to appoint that person if evidence suggests that appointing them could jeopardize the proper administration of the estate. In Matter of Barmapov, the Richmond County Surrogate’s Court considered whether the decedent’s daughter should be appointed preliminary executor where the surviving spouse alleged undue influence, financial irresponsibility, and severe hostility between the parties. The court ultimately declined to appoint the daughter and instead appointed the Richmond County Public Administrator to oversee the estate during the litigation.
Background facts
Rebeca Barmapov died on October 6, 2022. She was survived by her husband, Benjamin Barmapov, and family members including her daughter, Erma-Erit Barmapov Segev. Following the decedent’s death, two purported testamentary documents became the subject of litigation. One was a formal will dated June 10, 2021. The other was an earlier handwritten document allegedly created by the decedent on May 12, 2021.
Erma-Erit filed a petition seeking probate of the June 10, 2021 will and requested preliminary letters testamentary. Under that will, Erma-Erit was nominated to serve as fiduciary. The surviving spouse objected.
The dispute arose in the context of an ongoing and contentious family situation. According to the testimony, the decedent and her husband were involved in divorce proceedings before her death. The daughter testified that she had assisted her mother with preparing the will and had accompanied her to a UPS store where the will was executed before a notary and witnesses.
The surviving spouse challenged the daughter’s appointment as preliminary executor. He testified that he did not trust her, believed she was financially irresponsible, and argued that she lacked the ability to manage estate assets. He also pointed to significant hostility between family members and concerns regarding management of a family-owned limited liability company that represented an important estate asset.
Additional testimony was presented by family members and other witnesses concerning the daughter’s financial history, business ventures, and ability to work cooperatively with others.
Issue
Should the decedent’s daughter be appointed preliminary executor while the probate proceeding was pending, despite allegations of undue influence, financial irresponsibility, and severe hostility among the interested parties?
Holding
No. The court denied the daughter’s request for appointment as preliminary executor and appointed the Richmond County Public Administrator as temporary administrator pending resolution of the probate proceeding.
Discussion
The court examined SCPA 707(1), which identifies circumstances under which a person may be found ineligible to receive fiduciary letters. A proposed fiduciary may be disqualified if the person lacks the qualifications necessary to serve due to dishonesty, improvidence, want of understanding, or other circumstances demonstrating unfitness for the office.
The court noted that the burden of proving ineligibility rests on the objectant. However, New York courts have recognized that appointment may be denied when there is substantial evidence of misconduct, undue influence, financial irresponsibility, or hostility that threatens the proper administration of the estate.
The surviving spouse argued that the daughter was unfit because she had exercised undue influence over the decedent, lacked financial competence, and had a history of failed business ventures. He also testified that the parties’ relationship had become so hostile that they would be unable to cooperate in managing estate assets.
The court found that the allegations of undue influence and misrepresentation raised legitimate concerns regarding the daughter’s fitness to serve as preliminary executor. The court also considered testimony regarding her financial management abilities and evidence suggesting significant conflict among the interested parties.
Particularly important was the level of hostility between the daughter and the surviving spouse. The court cited New York decisions recognizing that severe friction between a fiduciary and beneficiaries may justify disqualification when that hostility threatens the orderly administration of the estate.
The court found that the record demonstrated substantial animosity that was unlikely to improve. The conflict was especially concerning because the estate’s primary asset included an ownership interest in B&R Tenth Avenue LLC, which would require cooperation among interested parties. The court concluded that appointing the daughter could impair effective administration of the estate and create additional disputes.
For those reasons, the court concluded that the appointment of an impartial administrator was appropriate.
Conclusion
Matter of Barmapov demonstrates that being nominated as executor in a will does not automatically guarantee appointment, particularly when serious questions exist regarding fitness, hostility among interested parties, or the ability to manage estate assets impartially. When a Surrogate’s Court concludes that family conflict or other circumstances may interfere with proper administration, it may appoint a neutral fiduciary to protect the estate while probate issues are resolved. Anyone involved in a dispute concerning executor eligibility, preliminary letters testamentary, or contested probate proceedings should speak with an experienced New York probate attorney to understand their rights and options.