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Probate Judge Removes Executor without Hearing Over Failure to Account Estate

A Kings County Surrogate’s Court judge recently removed the executor to an estate without a hearing over the individual’s failure to comply with the court’s order to properly account of the estate’s assets. The case is a prime example of how and why someone can be removed as the executor from estate if he or she fails to comply with their fiduciary duty to faithfully discharge the responsibilities of the executorship.

The petition to remove the executor was brought by a co-beneficiary to the estate, the sister of the former executor, after the executor failed to open a separate trust account and to file federal or state income tax returns for the trust. Additionally, the petition charged that the respondent’s neglect of the real property held by the limited liability company caused it to sell for a price much less than two previous offers to purchase the real estate, which the executor had rejected.

Prior to suspending the executor from his role of managing the estate, the co-beneficiary filed two-petitions with the Surrogate’s Court. The first, seeking the executor’s removal from management of the estate and the second asking the court to compel the executor into account and file the estate. The court subsequently issued a 45-day order for the executor to account for the estate and file the necessary paperwork.

As a result of the executor’s inability to follow through with the court’s direction, the judge hearing the case removed him from management pursuant to the provisions of SCPA 719(1) which state that a trustee may be removed without a hearing when after having been ordered to account, he fails to do so within the time and manner directed by the court. The judge determined that the execution impeded the efficient administration of the estate which necessitated the court’s intervention.

When someone is appointed the executor to an estate, the law expects this individual to properly pass the estate through probate which includes accounting for all the estate’s assets, liens, and debts. If the executor cannot live up to this responsibility, beneficiaries of the estate may ask the court to remove the individual from this important management role on the grounds that the executor is incompetent, failing to comply with court orders, uses estate funds for personal expenses or other improper uses, or engages in criminal acts.

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