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The Standards for Removing a Fiduciary

How to Tell When You Can Get a New Trustee, Excecutor, or Administrator in Westchester County

Even when a person sets up a trust as part of their estate plan, does not mean that the beneficiaries of that trust are stuck with the fiduciary no matter what the fiduciary does. New York law does provide for ways to a fiduciary to be removed from a trust. Removal actions are something that does require the skill of a Westchester estate attorney, however, to help make sure you get the best result possible.

New York law sets forth many different reasons why a fiduciary would be able to be removed. Some examples of this would be when the fiduciary is unfit, possibly because they did not handle trust assets correctly, or has been irresponsible, such as in the case of a trustee developing a drug or alcohol problem. Other reasons could be more procedural, such as not giving an accounting when asked, removing trust property from New York without the court’s permission or not following the court’s order on something. There could be other possible reasons as well, such as a contingency in the trust being met. This is not an exhaustive list by any means and there could be reasons that are not listed here why a fiduciary may be allowed to be removed.

However, grounds for dismissal under New York law do not necessarily equal the court actually dismissing the trustee. For example, if the trustee failed to report his or her new address to the court within 30 days as required by the law, but rather reported it 45 days later, it would be highly unlikely that they would be removed for that reason alone. The Surrogate’s Court usually will only remove a fiduciary in cases where their behavior was especially obvious or egregious. Some examples of this may be if the fiduciary embezzles money from the trust and tries to cover it up through refusing to do an accounting or faking the books all together. It would be much more likely that the court would respect the wishes of the person setting up the trust as to who the trustee would be.

When a beneficiary of a trust decides that he or she wishes to have a trustee removed, the first step is to hire a Westchester estate attorney to go over what all of the possible alternatives are. Even if there is bad blood between a fiduciary and beneficiary of a trust, it may be for the best to have an order for a specific action, rather than removal all together.

However, in those cases where removal is warranted, a Westchester estate attorney would file a motion for removal in front of the surrogate’s court. In a removal proceeding, the person seeing removal would have to prove to the court both that the fiduciary’s behavior fell under one of the prohibited categories that are set forth by the statute, but also that the fiduciary’s behavior was so extreme that removing them would be the only remaining option.

Whether you are defending or prosecuting a fiduciary removal in Westchester County, New York, call the Law Offices of Albert Gurevich at (914) 293-2043.