A person may commence various types of court proceedings in New York relating to his or her interest in an estate or trust. Sometimes a person is just trying to obtain information, and other times a person is looking to force a distribution, address certain actions taken or not taken by the fiduciary administering the estate or trust, or in extreme cases, have the fiduciary removed.

In New York, the Surrogate’s Court may revoke the authority of an executor or administrator of an estate or a Trustee of a trust under certain circumstances. Such revocation of authority (the equivalent of removing the fiduciary) is the most drastic alteration of a fiduciary’s authority and is therefore usually reserved for the more egregious cases. In less extreme cases, the Court may suspend or modify the fiduciary’s authority instead.

The removal of a fiduciary is oftentimes sought by commencing a proceeding known as a “removal proceeding” in the appropriate Surrogate’s Court. Although only certain persons may commence a removal proceeding in connection with an estate or trust, the class of persons is quite expansive. In the case of an estate or trust created under a Will, a co-fiduciary, creditor, a person interested, person on behalf of an infant, and a surety on a bond of the fiduciary may commence a removal proceeding. For a trust created by a person during his or her lifetime, all of the foregoing parties, other than a co-fiduciary, may commence a removal proceeding.

Although the actual removal of a fiduciary in a removal proceeding is within the discretion of the Surrogate’s Court, the grounds for such removal are prescribed by statute. Accordingly, the basis for a fiduciary’s removal in the context of a removal proceeding must be one or more grounds contained in the governing statute.

The reasons for which the Surrogate’s Court may remove an executor or administrator of an estate or a Trustee of a trust created under a Will in a removal proceeding are as follows:

1. Ineligible or Disqualified. Fiduciary is ineligible or disqualified to act as a fiduciary under New York law.
2. Unfit for Office. Fiduciary is unfit for the execution of his or her office because of his or her mismanagement of the assets, or other misconduct in the execution of his or her office.
3. Disobedience. Fiduciary has refused or neglected without good cause to obey a certain direction of the Court or a certain provision of law.
4. False Suggestion of Material Fact. Fiduciary obtained his or her authority by a false suggestion of a material fact (including a falsehood, a mistaken allegation made in good faith, or a lack of candor).
5. Occurrence of Contingency. Fiduciary’s office was to cease upon a contingency that has happened. For example, if a Will provides that an individual shall serve as a fiduciary so long as he or she is married to a particular person, the Court will remove such individual from office if the couple gets divorced.
6. Failure to Notify Court of Change of Address. Fiduciary’s failure, without sufficient reason, to notify the Court of his or her change of address within 30 days of such change.
7. Removal of Property from State. Fiduciary has moved trust or estate property outside of New York without prior Court approval.
8. Irresponsibility. Fiduciary does not possess the degree of responsibility required because of substance abuse, dishonesty, improvidence, lack of understanding or is otherwise unfit for the execution of the office.
9. Failure to Account. Fiduciary fails to file an account within such time and in such manner as directed by the Court.

In addition, a Trustee of a trust under a Will may be removed if he or she has become unsuitable to execute the trust because, for example, he or she has violated the trust or becomes insolvent. This ground for removal is meant to be slightly broader than the specific grounds listed above. The Surrogate’s Court may also remove a Trustee of a trust created by a person during his or her lifetime on a similar ground.

When it comes to removal, there are several layers of judicial discretion. Specifically, the Surrogate’s Court has the discretion as to whether to accept or entertain the request for removal, whether to temporarily suspend the fiduciary’s authority while the proceeding is pending, and whether to remove the fiduciary. The Court also has the authority and discretion to remove a fiduciary upon its own motion and without the commencement of a removal proceeding on different grounds or if any ground that would justify the removal of a fiduciary in a removal proceeding is otherwise brought to its attention.

The authority of the Surrogate’s Court to remove a fiduciary and its use of such authority in only extreme circumstances is but one example of the Court’s balance of a person’s freedom of choice (in this case, of fiduciary) and its protection of trust or estate property and the interests of other parties therein. Although the Surrogate’s Court is not quick to remove a fiduciary, the removal proceeding is an important tool for an aggrieved party to have in its arsenal.