Surrogate’s Court Procedure Act § 715: Application by Fiduciary for Permission to Resign

During the process of the administration of an estate, for a variety of possible reasons an executor, estate administrator, or other fiduciary may decide to resign. However, under New York law, a fiduciary cannot simply quit. He or she must petition the Surrogate’s Court for permission to resign. If you are a fiduciary, beneficiary, heir, or other interested party in an estate administration proceeding and have concerns related to the responsibilities of an administrator, including the requirements of Surrogate’s Court Procedure Act § 715, Application by fiduciary for permission to resign, contact an experienced New York estate administration lawyer at the Law Offices of Stephen Bilkis & Associates.

1. Eligibility to receive letters: Surrogate’s Court Procedure Act, § 707
2. Qualification of fiduciaries: Surrogate’s Court Procedure Act, § 708
3. Proceedings thereupon: Surrogate’s Court Procedure Act, § 716

A fiduciary is an individual who holds a position of trust with respect to another person. Fiduciaries commonly have the responsibility for the finances or property of another person, or the care of another person. Types of fiduciaries include executors, administrators, guardians, and trustees. Because of the trust place in fiduciaries and the enormous responsibility of the job, not just anyone can become a fiduciary. The law requires that fiduciaries meet specific qualifications.

A person who wants to become a fiduciary must submit a petition to the court that includes the reason that he or she should be named fiduciary. If you are interested in petitioning the Surrogate’s Court to be named a fiduciary, contact and experienced New York estate administration lawyer who understands the requirements for being appointed. Interested parties have the right to file objections to the fiduciary. Factors that would disqualify a person from being appointed fiduciary include:

• Being too young. A fiduciary must be at least 18 years old.
• Being an incompetent. Incompetent means that the person is unable to take care of his or her own affairs. If the person cannot take care of himself, he certainly cannot take care of the affairs of others.
• Substance abuse. A fiduciary must not have a problem with substance abuse.
• Speak English. If the fiduciary is unable to read or write English, the court has the discretion to deem him or her unfit to serve as fiduciary.
• Dishonesty, improvidence, want of understanding. If the person has a history of being dishonest, negligent, or has otherwise shown that he or she is unfit to serve as a fiduciary, the court will not approve appointment.
• Felon. A convicted felon cannot serve as fiduciary.
• Non-domiciliary alien. A non-domiciliary alien except one who is a foreign guardian, would be ineligible to service as a fiduciary.

For a variety of reasons a fiduciary may find that he or she is unable to continue serving. Just like there is a process that must be followed in order to be appointed as a fiduciary, there is also a procedure that the fiduciary must follow in order to resign. The fiduciary must submit a petition to the court as follows:

• Requesting permission to resign
• Requesting that his or her letters be revoked
• Requesting that he or she be permitted to settle his or her account
• Providing the reasons for the request

Notice of the petition must be sent to the appropriate persons in the manner directed by the court.

Because of the technicalities involved with filing a petition to the Surrogate’s Court, to ensure that all procedural requirements are followed, contact an experienced estate administration attorney in New York.

A fiduciary may present to the court at any time a petition praying that he or she be permitted to resign, that his or her letters be revoked and that he or she be permitted to settle his or her account judicially or informally as such fiduciary, and that notice of the application be given to the persons and in the manner directed by the court.  The petition shall show the facts upon which the application is founded.

For over two decades the estate administration attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have successfully represented clients in matters related to the administration of estates, disputes related to probate and estate administration, and issues related to fiduciary duties. If you are an interested party such as an executor, beneficiary, heir, or fiduciary in a matter related to the requirements of New York SCPA section 715, Application by fiduciary for permission to resign, or any other will, estate, or trust matter, contact one of our attorneys at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Long Island, Nassau County, Bronx, Brooklyn, Manhattan, Queens, Staten Island, Suffolk County, and Westchester County.