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ONLY SERIOUS MISCONDUCT, NOT CONFLICTS OF INTEREST, JUSTIFIES REMOVAL OF NAMED EXECUTORS, SURROGATE’S COURT REVERSED, MATTER SENT BACK FOR A HEARING (THIRD DEPT).

The Third Department, reversing Surrogate’s Court, determined that the petition seeking letters of administration on the ground that respondents, who were the named executors, had conflicts of interest and had breached their fiduciary duties, should not have been granted. The court explained that named executors can be removed only for serious misconduct, not conflicts of interest. The matter was sent back for a hearing:

“‘[I]t is actual misconduct, not a conflict of interest, that justifies the removal of a fiduciary'”… . Simply put, “a conflict does not make a fiduciary ineligible under SCPA 707, and public policy zealously protects the decedent’s right to name a fiduciary, even one with a conflict” … . Thus, petitioners’ remedy for the alleged conflict of interest lies not in the ineligibility provisions of SCPA 707, but in the provisions of SCPA 702 authorizing the issuance of limited and restricted letters of administration under certain enumerated circumstances.

To that end, SCPA 702 (9) specifically provides for the issuance of limited letters of administration to a party for the purpose of commencing “any action or proceeding against the fiduciary, in his or her individual capacity, or against anyone else against whom the fiduciary fails or refuses to bring such a proceeding.” Indeed, this subdivision is designed to preserve a decedent’s choice of fiduciary “by permitting the appointment of a second limited administrator instead of requiring the disqualification or removal of original fiduciaries where their conflicts of interests preclude them from pursuing claims against themselves or others to the prejudice of other persons interested in the estate” … . For these reasons, we conclude that the conflict alleged did not render respondents ineligible to serve as fiduciaries of decedent’s estate under SCPA 707. Matter of Bolen, 2018 NY Slip Op 08001, Third Dept 11-21-18

TRUSTS AND ESTATES (EXECUTORS, ONLY SERIOUS MISCONDUCT, NOT CONFLICTS OF INTEREST, JUSTIFIES REMOVAL OF NAMED EXECUTORS, SURROGATE’S COURT REVERSED, MATTER SENT BACK FOR A HEARING (THIRD DEPT))/FIDUCIARY DUTY (TRUSTS AND ESTATES, EXECUTORS, ONLY SERIOUS MISCONDUCT, NOT CONFLICTS OF INTEREST, JUSTIFIES REMOVAL OF NAMED EXECUTORS, SURROGATE’S COURT REVERSED, MATTER SENT BACK FOR A HEARING (THIRD DEPT))/EXECUTORS (TRUSTS AND ESTATES, ONLY SERIOUS MISCONDUCT, NOT CONFLICTS OF INTEREST, JUSTIFIES REMOVAL OF NAMED EXECUTORS, SURROGATE’S COURT REVERSED, MATTER SENT BACK FOR A HEARING (THIRD DEPT))

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