Disqualification of a Nominated Executor

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The person selected to act as the Executor can be anyone that the testator wants to be in charge of administration of the estate. There is no requirement that the Executor have any experience or expertise in handling estate matters or have any financial background. The Courts give the selection of an Executor by the testator great deference and the choice is honored unless there exists a ground for disqualification of the person nominated.

There are certain circumstances in which the Court will not appoint the Executor nominated by the testator. Surrogate’s Court Procedure Act § 707 states that a nominated executor is ineligible to serve it if they are: (a) an infant; (b) an incompetent or incapacitated person as determined by the Court; (c) a non-citizen or non-permanent resident of the United States; (d) a felon; and (e) one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.  The grounds for disqualification contained in (e) contemplate a nominated Executor that is likely to jeopardize estate assets, and put the interests of beneficiaries at risk.

The party alleging that the Executor chosen by a testator is ineligible to serve based upon one of the grounds listed above has the burden to prove such ineligibility. This can be a costly and time-consuming process involving litigation and will ultimately delay the administration and settlement of the estate for many months or even years.

There are certain circumstances where it is it may be worth the effort to partake in litigation to disqualify the nominated fiduciary. However, general dislike or mistrust of the nominated executor alone is not sufficient to disqualify the nominated executor and would likely be a waste of time and money to pursue.

Many situations do not rise to the level of commencing a proceeding to disqualify the nominated Executor at the outset of the administration.  A better way to proceed would be for one of the beneficiaries to retain an attorney experienced in estate administration matters to represent his or her interests in the estate.  This attorney would communicate with the Executor or their attorney and get periodic updates on the progress of the administration. If that attorney felt something inappropriate was being done by the Executor, they would be able to advise the client and to take the appropriate and tailored steps to protect your interests.

Nancy Burner, Esq. and Kera Reed, Esq.

Burner Law Group, P.C.

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