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How to remove an executor from a NY estate? Estate of Dispirito

1
Apr

By Jason Stern

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Any NY estate lawyer will readily tell you one of the most frequent complaints we get involves beneficiaries who are unhappy with the nominated fiduciary of their NY estate.  The nominated executor is the individual named in the testator’s will designated to administer their NY estate after they pass.  One instance that gives rise to suspicion is when the NY estate is distributed unequally and the executor is upset with their portion of the NY estate.  In other instances, NY estate lawyers have to deal with executors whose interests might be adverse to the interests of the estate itself.  For example, if the executor is residing in the NY estate asset, the decedent’s house, rent-free and refusing to leave or sell the premises this creates a common NY estate conflict that needs to be litigated.  In other cases, we have removed or disqualified nominated fiduciaries under a NY will from serving as executor if they thought the NY will was invalid and were intending to contest the NY will’s validity.  While it may seem intuitive that you cannot be an executor of the NY estate you were charged with administering if you intend to challenge the NY will that put you there you would be surprised how many times it actually occurs.  

So how else can beneficiaries prevent or remove a named executor from serving in a NY estate?  Well as most complex issues within the NY estate law the answer is it depends. SCPA 711 and 719 of the NY estate law dictates the qualifications an executor must possess as prerequisites to serving as fiduciary as well as the conditions permitting their removal.    For instance the executor of a NYC estate must be shown to be at least 18 years of age, a resident of the United States, competent, conversive in the English language and neither improvident or a felon.  In other words it is in the best interest of society that fiduciaries be upstanding members of the community, of reasonable substance and character.  In fact SCPA 707 of the NY estate law specifically lists evidence of substance abuse and illiteracy as grounds for disqualification.  

However the more complicated issue arises when the nominated executor is qualified to serve pursuant to the NY estate law  as stated above but whose interests may be so adverse to the interests of the NY estate that the fiduciary should be disqualified as unfit.  The NY estate law has widely held that a court may ‘judicially nullify” or remove a testator’s choice of fiduciary only upon a clear showing of serious misconduct that endangers the welfare of the NY estate.  Matter of Duke, 87 NY 2d 465 NY2d (1996).  Unfortunately, for beneficiaries seeking to remove or disqualify an executor of a NY will the NY estate law views the removal of a fiduciary as a severe sanction that Surrogate Courts will impose sparingly and only in the severest of circumstances. In other words, once a testator names someone as their executor it is very unlikely that the Court will disqualify that person.   

Estate of Dispirito

Nicolina DiSpirito passed away in NYC at the age of 87 . Nicolina was a NYC celebrity best known for her meatball rolling role on her celebrity chef son, Rocco DiSpirito’s reality television show, The Restaurant.  Nicolina herself owned a multi-family apartment building located on 2351 Pacific Street in Crown Heights, New York currently valued at $3 million dollars.  Nicolina’s will appointed her celebrity chef son Rocco as the nominated executor of her NY estate.  According to Nicolina’s NY will half of the NY estate was to be distributed to Rocco, while the other half was to be divided between her daughter Maria and other son Michael.  Now Maria and Michael are allegedly seeking the removal of Rocco as executor claiming that he waited more than five years to probate Nicolina’s will. Additionally, Maria and Michael are allegedly claiming that Rocco is seeking reimbursement for his mother’s healthcare costs he absorbed prior to her death as primary caregiver.  Allegedly Rocco is claiming that he was paying $28,000.00 per month for his mother’s care which he is now entitled to from her estate.

As a NY estate lawyer I can tell you that just because the executor is also a creditor of a NY estate, he is not disqualified from serving as the fiduciary.  Most likely the NY Surrogate’s Court would dismiss this allegation as irrelevant and permit Rocco’s appointment irrespective of any claims he may have against Nicolina’s NY estate as an individual.  The more serious charge against Rocco is waiting five years to probate the will as this could have seriously diminished the value of the NY estate.  Fortunately, for Rocco, Brooklyn real estate has gone no place but up since his mother’s passing and Nicolina’s estate only increased in value due to the five year delay.   However, this lapse in time is an egregious failure in the administration of the NY estate and will be seen as warranting the removal of an executor in the eyes of a NY Court should his siblings press the issue. 

As a New York estate lawyer, I cannot stress the value of having an attorney drafted will enough.  The best way to avoid costly NY estate litigation is to have a valid NY attorney drafted and supervised will naming a responsible party as your executor.  However, if you or a loved one are the beneficiary of someone who died with a will and in need of legal counseling from an experienced New York estate lawyer, please call one of our New York Estate Lawyers at the Law Offices of Jason W. Stern & Associates at (718) 261-2444 for a free consultation.  Our Queens estate lawyers have over 60 years of combined NY estate law experience handling these often treacherous NY estate litigation cases for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Richmond, Orange, Dutchess as well as in the State of New Jersey.

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