Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance tailored to your situation.
Detailed Answer
Under New York law, interested parties may petition the Surrogate’s Court to remove a personal representative (executor or administrator) who mismanages estate assets or breaches fiduciary duties. Removal is governed by Section 711 of the Surrogate’s Court Procedure Act (SCPA). You must demonstrate misconduct, self-dealing, failure to account or other grounds specified in SCPA 711(1). A typical removal process involves these steps:
- Gather Evidence of Misconduct
Compile documents showing mismanagement, such as missing funds, unauthorized transactions or failure to provide accountings. Common grounds under SCPA 711(1) include refusal or inability to perform duties, misconduct and breach of trust. - Prepare and File the Petition
Draft a petition in the Surrogate’s Court where the decedent resided. The petition should state facts, cite legal grounds for removal under SCPA 711 and specify the relief sought (removal, surcharge, appointment of a successor). Attach affidavits or exhibits supporting your claims. - Pay Filing Fees and Submit Paperwork
File the petition with the court clerk and pay the required fee (check local fee schedule). If you cannot afford fees, you may request a fee waiver under SCPA 103. - Serve the Petition and Notice of Hearing
Serve the personal representative, all beneficiaries, heirs and creditors with the petition and a notice of hearing. Service must comply with SCPA 307 and local court rules. Typically, service occurs at least 20 days before the hearing. - Attend the Show-Cause Hearing
At the hearing, you present evidence of misconduct. The personal representative may respond, call witnesses or submit accountings. The judge evaluates whether grounds under SCPA 711 are met. - Court Decision and Successor Appointment
If the court finds sufficient cause, it will remove the personal representative, may surcharge them for losses, require them to post bond or report assets, and appoint a successor fiduciary under SCPA 711(2).
Throughout this process, strict compliance with procedural rules and deadlines is essential. Consider retaining an attorney to navigate complex evidentiary and procedural requirements.
Helpful Hints
- Document Everything: Keep records of bank statements, communications and accountings that illustrate misconduct.
- Check Deadlines: Verify service and filing deadlines in the local Surrogate’s Court rules.
- Consider an Interim Accounting: Request an interim accounting before seeking removal to highlight discrepancies.
- Explore Settlement: Mediation with the personal representative may resolve issues without a formal removal.
- Consult a Probate Attorney: Even if you proceed pro se, a brief consultation can clarify strategy and statutory requirements.