Given the judicial deference accorded to a testator’s selection of a fiduciary, the removal of an executor or trustee is not a step that a court is inclined to take. However, when circumstances demonstrate that the administration of an estate or trust is in jeopardy as the result of a fiduciary’s misconduct, removal, or at the very least, suspension of the fiduciary’s authority, may be warranted. This month’s column reports on recent Surrogate’s Court decisions addressing this issue.
Removal Denied
Hostility between the named fiduciary in a will or trust and a beneficiary has often served as fodder for a petition for revocation of the fiduciary’s appointment. However, as set forth in In re Smithers, NYLJ, Aug. 17, 2000, at 21 (Sup. Ct. New York County), and In re Brody, 21 Misc.3d 1108A, 872 N.Y.S.2d 689 (Sur. Ct. Nassau County 2008), unless the hostility interferes with the proper administration of the estate, it cannot, in itself, serve as a basis for removal.
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