Q: My father recently passed away. I have one brother and one sister. The will divides the assets equally among the three of us. My father’s will has nominated my sister as Executor. She declared bankruptcy several years ago and I do not think that she should serve as Executor. Do you have any advice?
A: The person selected to act as the Executor can be anyone that the testator wants to conduct the administration of the estate. There is no requirement that the Executor have any experience or expertise. The Courts give the selection of an Executor by the testator great deference and it 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. Grounds (a)-(d) are generally not the ones that cause significant controversy and are relatively easy to prove.
Ground (e) is the one you likely believe your sister falls under due to her bankruptcy. This is understandable since she has likely had difficulty managing her own finances in the past. However, pursuing disqualification on this ground can be a costly and time-consuming process involving litigation. This will ultimately delay the administration and settlement of the estate for many months or even years. There are certain circumstances where it is worth to partake in litigation to disqualify the nominated fiduciary. However, general mistrust is not enough 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 to retain an attorney experienced in estate administration matters to represent your 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 you and to take the appropriate and tailored steps to protect your interests.
– Nancy Burner, Esq. and Kera Reed, Esq.