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Co-Executor Can Object to Final Accounting Solely By Virtue of the Executor’s Fiduciary Duty to the Estate 

In finding that a co-executor (who could no longer be sued by any of the beneficiaries because all had executed releases) had standing to contest a final accounting submitted by the other co-executor, the Fourth Department wrote:

An executor is a fiduciary who owes “a duty of undivided loyalty to the decedent and ha[s] a duty to preserve the assets that [decedent] entrusted to them” …, and “an executor’s duties are derived from the will itself, not from the letters issued by the Surrogate” … .

“Suffice it to say, an executor who knows that his co[-]executor is committing breaches of trust and not only fails to exert efforts directed towards prevention but accedes to them is legally accountable” … .

…[T]the Surrogate concluded that, because there were no remaining creditors of the estate and all of the other beneficiaries had executed releases absolving objectant of liability, objectant no longer had standing as a co-executor to file any objections to petitioner’s final accounting. * * *

Contrary to the Surrogate’s conclusion, the mere fact that the estate has no creditors and objectant can no longer be sued successfully by any of the beneficiaries does not establish that he has fulfilled his fiduciary duty to the decedent and the estate so as to vitiate his standing to raise objections to the accounting filed by the co-executor.

An executor’s duty is not fulfilled merely because he or she has obtained releases from liability.

The standard of care for a fiduciary cannot be set so low; rather, a fiduciary has a “duty of active vigilance in the collection of assets belonging to the estate” …   In the Matter of Schultz, 51, CA 12-01283, 4th Dept. 3-15-13

 

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