The Appellate Division of the Fourth Department has upheld the decision of  the Erie County Surrogate which dismissed objections to the nomination of an  executor in the Matter of the Estate of Carmen J. Russo reported at 954N.Y.S.2d 395 (A.D. 4 dept 2012). The decedent’s daughter filed objections to probate, claiming that the proposed executor had a potential conflict of interest which would prevent serving as a fiduciary.

The court ruled that in the absence of actual misconduct, the fiduciary would not be rendered unfit to serve. The court opined that the testator’s choice of executor should be given great deference and not be disregarded unless that executor is legally unqualified to act as fiduciary.


Frequently, your lawblogger’s clients voice strong objections to a nominated executor. It should be kept in mind that absent outright misconduct, it is very difficult to disqualify a testator’s choice of fiduciary. However, I have always advised that it may well be better to saddle a questionable appointee with the burden of fiduciary responsibility and simply wait in the weeds to enforce one’s rights should the fiduciary run afoul of his or her obligations.