Authors
Jennifer L. Mikels
Director, Boston
jmikels@goulstonstorrs.com+1 617 574 3854
Charles R. Jacob III
Of Counsel, New York
cjacob@goulstonstorrs.com+1 212 878 5143When is the executor nominated by the decedent in a will deemed unfit to serve as executor? Rarely – but a recent decision in Surrogates Court set forth the standard and deemed the nominated executor in that case unfit to serve.
In Matter of Estate of Ryan, 227 N.Y.S.3d 541 (Surr. Monroe January 24, 2025), the decedent named her step-daughter (Barbara) as executor in her will. The decedent’s daughter (Susan) objected to Barbara’s nomination and filed a competing petition for letters of administration. The court noted that “the burden is exceedingly high on one who seeks to deny letters testamentary to one nominated as an executor,” but granted Susan’s petition nonetheless, following an evidentiary hearing.
The court pointed to a number of failings by Barbara as executor. First, upon the decedent’s passing, Barbara did not promptly seek letters of administration. Rather, she engaged in what amounted to self-help: she sold assets of the decedent (condominiums in Mexico) and, rather than distributing the proceeds under the will, retained them, claiming the benefit of a Spanish-language “trust agreement” that was not produced at the hearing. Second, she left hundreds of thousands of dollars in bank accounts rather than distributing them. Finally, she did not seek probate of the decedent’s will until Susan brought her petition, some 18 months after the decedent had passed away.
Susan sought to disqualify Barbara as “one who does not possess the qualifications required of a fiduciary by reason of ... improvidence ... or who is otherwise unfit for the execution of the office,” citing Surrogate Court Procedure Act § 707(1)(d). The court agreed, stating “[e]ven if her actions do not fit the definitions of ‘improvidence,’ they would fall within the more generalized catch-all provision of ‘unfit for the execution of the office,’” added to the S.C.P.A. in 1993 to “modernize” the provision. The court concluded: “In the ‘modern’ view, then, Barbara’s actions, again seen as a whole, render her unfit to be the administrator of the Estate. The court has no guarantee that the administration would take place with the required alacrity upon her appointment, since she did nothing for nearly 18 months to distribute the more than $300,000 that without question was to be distributed to the beneficiaries. She has not made available the ‘trust’ agreement that she says entitled her to the proceeds of the Mexican properties, and she has set up the estate for a costly turnover proceeding to claw back those proceeds. She has exposed the estate to substantial liability for estate income taxes, interest and penalties.”
The court granted Susan’s petition for letters of administration and denied them to Barbara.
The Takeaway: While the burden of displacing the executor nominated by the decedent is “exceedingly high,” it can be met. Both nominated executors and those who might be aggrieved by an executor’s actions (or inactions) should bear this in mind in evaluating conduct by an executor under a will.