McCarthy Fingar's litigation experience has included many removal proceedings in the Surrogate's Court, whether seeking the removal of an executor or trustee or defending against a removal. Removal proceedings are often difficult to prosecute, especially since the details of the actions of a fiduciary are known only by the executor or trustee and the fiduciary's attorneys.
New York statute and case law describe the circumstances upon which the Surrogate's Court can remove a fiduciary. In the usual case, such grounds relate to the fiduciary's conduct during the administration of an estate or trust. Although it is difficult to reach generalizations in this area, some examples of situations that might require the removal of a fiduciary follow.
Self-Dealing. Just about the worst illustration of fiduciary misconduct is when the fiduciary has used his or her power for personal profit. One example of "self-dealing" is a fiduciary making loans to himself or herself.
Gross Mismanagement of Family Business. An executor or trustee is obligated to act prudently in the administration of an estate or trust. The proper management of a family business is important, especially since fiduciaries often have a personal stake or involvement in the business and cross the line and act in such a way that may require that fiduciary's removal.
Failure to Account. The most fundamental job of a fiduciary is to keep and maintain records in an estate or trust, including furnishing the beneficiaries and/or the Surrogate's Court with an accounting for the estate or trust. Failure to provide such an accounting is probably the single biggest reason for the removal of a fiduciary.
Violations of Court Orders or Court Rules. Executors and trustees under Wills are appointed by the Surrogate's Court, and their conduct is subject to court rules and procedures. Despite this fact, there are many instances in which fiduciaries are removed for either an inadvertent or intentional violation of court orders or statutory or court rules.
Whether we are seeking to remove a fiduciary or to defend a fiduciary in a removal proceeding, the lawyers in our Surrogate’s Court Litigation group will bring their many years of experience to develop a strategy on how the case should go forward. Removal proceedings often involve a series of issues for which a fiduciary's conduct is subject to challenge. Our lawyers will evaluate that conduct and determine the appropriate measures to be taken.
If you think you may require the assistance of McCarthy Fingar's Surrogate’s Court Litigation group, contact Frank W. Streng by email (firstname.lastname@example.org) or by phone (914-385-1022) or Gail M. Boggio by email (email@example.com) or phone (914-385-1026) with any question you may have.