Removal of an executor or administrator from office in a New Jersey estate can be done by the court for several reasons, including bad behavior, the loss of capacity, or neglect of their duties.
Section 3B:14-21 governs the removal of an executor or administrator in New Jersey for cause and provides that the court may remove a fiduciary from office when the fiduciary:
- After due notice of an order or judgment of the court so directing, neglects or refuses, within the time fixed by the court, to file an inventory, render an account, or give security or additional security;
- After due notice of any other order or judgment of the court made under its proper authority, neglects or refuses to perform or obey the order or judgment within the time fixed by the court;
- Embezzles, wastes, or misapplies any part of the estate for which the fiduciary is responsible, or abuses the trust and confidence reposed in the fiduciary;
- No longer resides nor has an office in the State and neglects or refuses to proceed with the administration of the estate and perform the duties required;
- Is incapacitated for the transaction of business; or
- Neglects or refuses, as one of two or more fiduciaries, to perform the required duties or to join with the other fiduciary or fiduciaries in the administration of the estate for which they are responsible whereby the proper administration and settlement of the estate is or may be hindered or prevented.
Some of the enumerated reasons to remove an executor or administrator of a New Jersey estate are more egregious than others. At the top of the list is prong (c) – embezzling or stealing from the estate.
Removal Of an Executor Or Administrator Is an Extraordinary Remedy
In In the Matter Of Edgar Reeve, a New Jersey Appellate Court summarized the law concerning removal of a fiduciary in the contest of the removal of a trustee, stating:
Removal is an extraordinary remedy and the application to remove a trustee is only granted sparingly. Braman v. Central Hanover Bank & Trust Co., 138 N.J. Eq. 165, 196-97 (Ch. 1946). Our courts are generally reluctant to remove a fiduciary designated by the decedent in his will. As long as the executor acts in “good faith, with ordinary discretion and within scope of his powers, his acts cannot be successfully assailed.” Connelly v. Weisfeld, 142 N.J. Eq. 406, 411 (E. & A. 1948). See also Rothenberg v. Franklin Washington Trust Co., 127 N.J. Eq. 406 (Ch. 1940).
The power of a court to remove a fiduciary may be exercised whenever such a “state of mutual ill feeling, growing out of the trustee’s behavior, exists between the trustee and the beneficiary, that his continuance in office would be detrimental to the execution of the trust.” Braman, supra, 138 N.J. Eq. at 166. However, the executor’s conduct must be such that it became, or threatened to become, inconsistent with his obligations to the estate. Semler v. CoreStates Bank, 301 N.J. Super. 164, 175 (App. Div.), certif. denied, 151 N.J. 467 (1997) (citing In re Koretzky, 8 N.J. 506 (1951) and Wolosoff v. C.S.I. Liquidating Trust, 205 N.J. Super. 349, 362 (App. Div. 1985)). At the same time, courts will be especially cautious where the court, as here, is asked to pass judgment upon an executor appointed by the testator under a will. Connelly, supra, 142 N.J. Eq. at 411.
Not every violation of duty is a ground of removal. For example, the mere fact that “a beneficiary disagrees with a fiduciary’s proper exercise of discretionary powers, or is resentful of the fiduciary’s authority, or is antagonized by his personality, is not sufficient to cause his removal.” In re Koretzky, supra, 8 N.J. at 530-531. However, when clear and definite proof of gross carelessness, indifference or acts done in bad faith by the fiduciary have been evidenced, or that have diminished or endangered the trust without bad faith, it is the duty of the court to remove him. Braman, supra, 138 N.J. Eq. at 166. See also Connelly, supra, 142 N.J. Eq. at 410 (1948).
It is generally accepted that a court can remove an executor for acts done in breach of trust, see Clark v. Judge, 84 N.J. Super. 35, 62 (Ch. Div. 1964), but the applicant seeking removal must produce competent evidence demonstrating misconduct, or that continued retention of the executor would endanger the trust or the welfare of the beneficiary. In re Estate of Hazeltine, 119 N.J. Eq. 308, 316-317 (Prerog. Ct.), aff’d 121 N.J. Eq. 49 (E. & A. 1936).
In sum, removal of an executor or administrator in New Jersey is not done lightly, because the choice of executor made by the testator in the will is given great weight. However, acting in bad faith or in a way that is harming the estate will give the court grounds to remove the executor under New Jersey law.
Can You Remove an Executor Because Of Hostility Toward the Beneficiaries?
Yes, but mere friction and hostility is not enough. Generally, there must be a demonstration that the relationship will interfere materially with the administration of the estate or is likely to do so.
In In re Estate of John H. Hnat, 2009 N.J. Super. Unpub. LEXIS 103 (A-4672-07T2) (App. Div. 2009), the court considered if the removal of the executrix based on perceived hostility and friction between the parties was proper in light of the lack of any evidentiary support. The answer was no. Because no proof was presented that any of the reasons for removal under section 3B:14-21 existed, sufficient grounds were not present to remove the executrix. In this case, the New Jersey court removed the executrix due to “assumed friction and hostility between the parties.” Assumptions are not evidence, and so the court’s removal of the removal of the executrix was reversed.
If evidence had been presented that extreme hostility led to the executor abusing the trust and confidence reposed in her as a fiduciary, then removal might have been appropriate. Mere allegations of hostility are not sufficient grounds to remove an executor or administrator in New Jersey – there must be some evidence that the relationship will interfere materially with the administration of the estate, or is likely to do so. See Wolosoff v. C.S.I. Liquidating Trust, 205 N.J. Super. 349, 362 (App. Div. 1985).
If you are considering attempting to remove the executor of a New Jersey estate, consult with a New Jersey probate litigation lawyer who can advise you whether you have grounds for removal.
