New York Probate Lawyer Blog
The appointment of an Executor or Administrator to represent a New York estate may, at first, seem rather simple. If a person dies without a Last Will and Testament the estate is inherited by the decedent’s next of kin, known as distributees. Pursuant to Estates, Powers and Trusts Law section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, the persons who inherit are listed in the order of their kinship to the decedent, i.e. spouse, then children and so on.
Concomitant to this statute is Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting Letters of Administration”, which gives the same priority to heirs to be appointed as a decedent’s intestate estate Administrator. Problems arise regarding the actual appointment for numerous reasons. The New York Probate Lawyer Blog has published many articles concerning the appointment of New York estate fiduciaries. One major area of contention arises when there are multiple individuals who have an equal priority right to appointment who are competing against each other and contesting the other persons appointment. This circumstance often arises when a decedent’s children or brothers and sisters are seeking appointment. The Surrogate’s Court typically is called upon to resolve or rule on such disputes.
In a situation where a person dies leaving a Will, the document typically contains a provision nominating an Executor and usually one or more successor Executors. When this occurs, the nominated fiduciary has the priority to seek appointment as Executor.
Whether an estate is subject to settlement in accordance with a Will or intestate, an additional level of dispute may surround the qualifications of the proposed Administrator or Executor. Objections to an appointment may occur prior to their appointment or after appointment. If such issues arise after appointment, a separate proceeding needs to be commenced in the Surrogate’s Court to revoke the appointment.
As a general rule, whether a fiduciary is appointed by statute or the terms of a Will, the Court must receive specific information or evidence demonstrating the grounds for a fiduciary’s disqualification. SCPA 707 entitled “Eligibility to receive letters” and SCPA 711 entitled “Suspension, modification or revocation of letters or removal for disqualification or misconduct” provide grounds to find that an estate fiduciary should not serve.
Recent Manhattan estate cases concerned issues as to whether a person should be prevented from serving as fiduciary despite their entitlement to be appointed. In Estate of Gerald P. MacKenzie, decided by Manhattan Surrogate Rita Mella on March 5, 2025, a distributee in an intestate estate sought the removal of the appointed Administrator on the grounds that the Administrator failed to inform the Court that there were additional distributees other than himself. The removal application was unopposed and the Court removed the Administrator due to the material misrepresentations made to the Court.
In Estate of Esther Murrell, also decided by Manhattan Surrogate’s Rita Mella on December 30, 2024, the Court appointed each competing party as a fiduciary. In this case, the primary nominated Executor was found to have a conflict of interest regarding a lawsuit over a possible estate asset. While the Court appointed the primary nominated Executor as Preliminary Executor, the Court appointed the substitute Executor as Temporary Administrator with regard to representing the estate in the asset lawsuit.
Both the above estate cases reflect the complexities surrounding the appointment of fiduciaries for an estate. I have been representing clients in estate and trust matters for over 40 years. Do you have a question concerning a trust, estate or Surrogate’s Court case? Do you need assistance with probating a Will or obtaining Letters of Administration? Call me now for a free review. We provide reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.