An executor is a person specified in a will to handle administrative tasks on behalf of the estate. The primary responsibilities of an executor include collecting assets, paying valid debts, paying taxes, and accounting to the beneficiaries and distributing the net assets to the beneficiaries. An executor can be a person who is
(1) Over the age of 18
(2) A U.S. citizen or legal resident living in New York
(3) Not adjudicated to be incapacitated or
(3) Never convicted of a felony
In some situations, the executor can even be a corporation such as a bank or trust company, but that is usually in very large estates.
Sometimes a beneficiary or creditor of the estate becomes aware of improprieties or illegal activity by the executor, and believes that what is due to them is at risk. Other times, an executor actually fails to carry out the terms, cannot discharge his or her duties or engages in misconduct, and it becomes necessary to take legal action to remove an executor. This is a complicated legal matter, requiring an experienced estate attorney to commence the removal of the executor to ensure that the probate process continues properly and assets are preserved. It is important to act quickly when you believe the removal of an executor is warranted, before more harm is done to the assets of the estate.
SCP § 711 provides sets procedures in place for revoking the papers issued by this court for an executor of a will, thus removing that executor from his position. Any person with an “interest” in the estate has standing to petition for the removal of an executor. This means broadly that it can be any person that stands to lose or gain money from the estate, but typically it is either a beneficiary or a creditor. Any person with an interest can bring an action to remove an executor.
There are many reasons why an executor may need to be removed, including substance abuse, mental illness or other conditions. The following are some grounds that are typically the basis of a legal action to remove an executor:
There are many other reasons for seeking the removal of an executor, and the legal elements of these grounds must be proved to the satisfaction of the court in order to remove the executor.
An executor has a fiduciary duty to the beneficiaries of an estate, and when that duty is breached, they can be held liable for the losses. If it can be proven that the executor acting negligently in the performance of their duties, caused a loss of assets, an action can be brought against the executor for money damages. If you have standing to seek removal of an executor, you may also be entitled to money damages for your losses. You should discuss this with an experienced New York wills and trusts lawyer to protect your interests.
New York does not require you to hire an attorney to remove an executor, but as this is one of the most complicated areas of estate law, you would be best served by at least consulting with an experienced probate and estate attorney to find out whether or not there are sufficient grounds for removal. An attorney can help collect evidence that can aid your case and represent you before the judge. If valid grounds exist, and you can preserve the assets of the estate which are at risk due to the actions of an executor, you may be best served by hiring an attorney.
New York estate planning and probate attorney Roman Aminov, Esq. of the Law Offices of Roman Aminov, P.C. has considerable experience dealing a whole range of estate planning and probate issues. Roman serves clients throughout all five boroughs of New York City in need of estate planning and probate services. If you are in need of an experienced estate planning or probate attorney in New York, contact the Law Offices of Roman Aminov, P.C. today at (347) 766-2685 for a free telephone consultation regarding your particular situation.
Law Offices of Roman Aminov 147-17 Union Tpke, Flushing, NY 11367 (347) 766-2685 aminovlaw.com