New York Probate and Estate Administration Lawyer Blog
In In re Kaufman, the Appellate Division was asked to determine whether the Surrogate’s Court erred in suspending the letters of co-executors without an evidentiary hearing.
When a testator makes a will, it is their last opportunity to let the world know what they want to happen to their property once they pass away. Testators can also choose to nominate an executor who would be responsible for managing their estate.
Wills are legally enforceable documents, and courts have a duty to uphold their terms. Thus, whenever the court is asked to make a ruling that would circumvent the wishes of a testator, they make sure that there is a very good reason to do so supported by clear evidence.
Removal of Kaufman co-executors
Ruth Kaufman died on January 9, 2009, leaving a will dated June 22, 2005. In the will she named her only children, Allen and Kenneth, as her co-executors. The will was entered into probate and letters testamentary were issued to Allen and Kenneth.
The brothers soon realized that it would be difficult to work together as co-executors. Allen petitioned the Surrogate’s Court of Nassau County to revoke Kenneth’s letters and Kenneth cross-petitioned the court to revoke Allen’s letters. The goal of each brother was to remove the other and proceed alone.
The Surrogate’s Court’s decision surprised the brothers. The Surrogate’s Court revoked the letters of both Kenneth and Allen and issued letters of administration to the Public Administrator of Nassau County. Allen appealed the portion of the decision that revoked his letters and appointed the Public Administrator.
Removing an executor
SCPA §§ 711 and 719 set forth grounds for which an executor can be removed. Removing an executor nominated by a testator is tantamount to nullifying the wishes of the testator—something that courts are loathe to do. The court will only do so when grounds have been clearly established.
Under SCPA § 711, grounds for revoking the letters of an executor include:
- Wasted assets. Executors are charged with protecting the assets of an estate. If their actions negative impact the value of the estate, there would be grounds to revoke their letters.
- Ignored court orders. While an executor has the authority to manage the estate of a decedent, they are answerable to the court. They must follow all lawful orders of the court or risk being removed.
- Fraudulently obtained letters. When petitioning the court for letters, the executor must be truthful. If the executor submitted false information, their letters could be revoked.
- Removed estate assets from the estate. An executor is not allowed to remove estate property without prior permission from the court. If they do, they can be removed.
- Not qualified. Even if an executor was selected by the testator, they must still be fit to serve. If there is evidence that they are dishonest, irresponsible, abuse drugs or alcohol, or are otherwise unfit, the court has the right to revoke their letters.
Under SCPA § 719, grounds for revoking the letters of an executor include:
- Failure to account. An executor must submit an accounting to the court whenever the court requests one. Failure to do so is grounds for removal.
- Failure to provide information. An executor must provide the court with information about the estate when asked. Failure to do so is grounds for removal.
- Failure to secure a bond. If the executor fails to secure bond as required by the court, their letters could be revoked.
- Convicted of a felony. Being convicted of a felony is grounds for revocation of letters.
- Declared incompetent. Being judicially committed to or being declare incompetent are grounds for revocation of letters.
- Commingling assets. If the executor mingles estate funds with his own, the court will have grounds to revoke their letters.
Evidentiary hearing
In his appeal, Allen argued that the Surrogate’s Court erred in revoking his letters without a hearing. The Appellate Division responded by noting that the Surrogate’s Court has the authority to revoke letters without a hearing if there are undisputed facts of misconduct.
The court found that there was undisputed evidence of a conflict between Allen and Kenneth, they both were irresponsible in managing estate property, and that they failed to abide by a stipulation related to managing the estate.
As a result, the Appellate Division upheld the Surrogate’s Court decision to revoke Allen’s letters and appoint a public administrator.