Published on:

Where the Executor and Beneficiary Do Not Get Along the Court Will Appoint a Neutral Administrator, In re Thomas, 26 N.Y.S.3d 727(Table) (N.Y. Surr. Ct. 2015)


In this case the Kings County Surrogate’s Court considered a petition filed by a beneficiary to revoke the letters testamentary of the executor.

Under New York law, under SCPA § 711, an interested party such as a beneficiary can petition the court to revoke the authority of the executor. However, the court is loathe to disturb the testator’s choice without a very good reason.  There are several “very good” reasons for revocation including:

  • The executor was never qualified or is no longer qualified (e.g. the executor was convicted of a felony)
  • The executor wasted estate assets
  • The executor refused follow an order of the court
  • The executor lied in order to receive the appointment
  • The executor failed to timely notify the court of a change in address
  • The executor removed estate property
  • The executor had issues with substance abuse
  • The executor was proved to be dishonest or otherwise unfit for the execution of the office
  • The executor failed to file an accounting

In Thomas, the decedent left her entire estate to her two sons in equal shares.  She also named the two sons to serve as co-executors. However, one of the sons, the petitioner, was not able to serve because he was not qualified.  Over the objections of the disqualified son, the other son was appointed by the court to serve as executor.

Here the petitioner initiated estate litigation to request that the court to revoke his brother’s authority as executor, alleging that hehad not properly managed the estate assets, improperly removed property from the decedent’s home, harassed a tenant, and failed to sell the mother’s house.  In addition, the petitioner alleged that the executor should be removed because he obtained his letters by lying about having a key to the mother’s house.

The court did not address each of the petitioner’s allegations individually.  Instead the court noted that none of the allegations was serious enough to mandate the removal of the executor.  The court went on to point out that the friction between the executor and the beneficiary is a problem that needs to be addressed.  The animosity between the brothers is long standing.   Now it has had an impact on the administration of the decedent’s estate.  The brothers are constantly involved in estate litigation. As a result, very little progress has been made.  Even though the executor received letters over 2 years ago, he has not even sold the estate’s largest asset, the house, so that distribution of the estate’s assets can commence.

The court has determined that while mere friction between the executor and a beneficiary is not sufficient grounds to remove the executor, if the friction interferes with the administration of the estate, the court must do what is in the best interests of the estate and remove the executor.  That is what the court decided to do.  The court revoked the executor’s letters in favor of appointing a neutral executor- the Public Administrator of Kings County.

While legitimate disputes are often a part of the estate administration process, animosity among beneficiaries and between beneficiaries and the executor can lead to unnecessary litigation. The result can extend the administration process for months or even longer.  This means that there will be an excessive delay in the distribution of assets.  Further, constant litigation will also impact the value of the estate, as at least some of the attorney’s fees and other costs associated with litigation would be paid out of the estate assets. In this case the court wisely removed the executor and appointed a Public Administrator to facilitate an efficient settling of the estate.

Published on:

Comments are closed.

Contact Information