Removing a Fiduciary
A Fiduciary is a person charged with managing trust or estate assets. That person is expected to operate with honesty, integrity, and for the benefit of the beneficiaries. When a trustee or executor has proven him or herself to be unqualified, that person should be removed from office. The way to remove a fiduciary is to institute a removal proceeding.
What are Some Reasons to Remove a Fiduciary?
As set forth in SCPA 711, the Court may remove an Executor or Administrator of an Estate or a Trustee of a Trust created under a Will under the following circumstances:
- Ineligible or Disqualified.Fiduciary was or now has become ineligible or disqualified to act under New York law.
- Unfit for Office.Fiduciary is unfit for the execution of office because of mismanagement of the assets or other misconduct.
- Disobedience. Fiduciary has refused or neglected to obey a Court Order.
- Liar. Fiduciary became a fiduciary by misleading or lying.
- Occurrence of Contingency. Fiduciary’s office was to cease upon a contingency that has happened. For example, if a Trust provides that an individual shall serve as a fiduciary until a child graduates from school, the Court will remove such individual from office when the child graduates.
- Failure to Notify Court of Change of Address. Fiduciary’s failure, without sufficient reason, to notify the Court of his or her change of address within 30 days of such change.
- Removal of Property from State. Fiduciary has moved trust or estate property outside of New York without prior Court approval.
- Irresponsibility. Fiduciary does not possess the degree of responsibility required because of substance abuse, dishonesty, improvidence, lack of understanding or is otherwise unfit for the execution of the office.
- Failure to Account. Fiduciary fails to file an account within such time and in such manner as directed by the Court.
How do you Remove a Fiduciary?
To remove a fiduciary, you will need to file a petition with the Surrogate’s Court. The petition should set forth the facts and circumstances that you believe warrant the removal. It is not enough to state that there is hostility between the fiduciary and the beneficiary. You need to have an actual reason that falls into one of the categories set forth in SCPA 711 above. The Court has authority to determine whether to hear the petition. If your petition does not set forth the appropriate reasons or justification for removal, the Court may decline to entertain the matter. On the other hand, if the situation is dire enough, the Court may temporarily suspend the powers of the fiduciary until a hearing is held to determine the merits of the removal.
If you are removing a sole fiduciary, such that there is no other fiduciary in office, then along with your Petition for removal, you should also prepare a Petition for Letters of Administration d.b.n. By filing a Petition for Letters of Administration d.b.n., you are asking the Court to appoint another person as the successor fiduciary.
Whether you are seeking to remove a fiduciary or are the fiduciary who is being removed, you should contact an experienced estate litigation attorney to assist you in your endeavors.
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