WHO CANNOT BE A FIDUCIARY UNDER SURROGATE'S COURT PROCEDURE ACT

If you are "dishonest", you are not eligible. According to SCPA 701:

"Letters may issue to a natural person or to a person authorized by law to be a fiduciary except as follows:

1. Persons ineligible

(a) an infant

(b) an incompetent

(c) a non-domiciliary alien except one who is a foreign guardian as provided in subdivision four of section one thousand seven hundred sixteen of this chapter, or one who shall serve with one or more co-fiduciaries, at least one of whom is resident in this state.  Any appointment of a non-domiciliary alien fiduciary or a New York resident fiduciary hereunder shall be made by the court in its discretion

(d) a felon

(e) one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.

2. Persons ineligible in court's discretion.  The court may declare ineligible to act as fiduciary a person unable to read and write the English language."

MATTER OF CENTNER, 2018 NY Slip Op 32664 - NY: Surrogate's Court, Richmond 2018:

"Petitioner further argues that the Respondent is ineligible to serve based on SCPA § 707(1)(e). SCPA § 707(1)(e) states "Letters may issue to a natural person or to a person authorized by law to be a fiduciary except as follows: Persons ineligible . . . One who does not possess the qualifications required by a fiduciary by reason of substance, abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office." Petitioner has provided transcripts of the divorce proceedings, and statements from the Respondent in an effort to demonstrate the "dishonesty" that Respondent has shown. Petitioner alleges that Respondent stole an excessive amount of funds from the marital joint account while Decedent was suffering from cancer. Furthermore, Petitioner argues that Respondent delayed the divorce proceeding in order to ensure that the Decedent would die as his wife, which would result in her estate passing to the Respondent. Respondent objected to the inclusion of such evidence, and argues that all allegations of dishonesty are based upon purported excerpts of uncertified transcripts from the divorce proceeding. Respondent heavily objects to the introduction of any of the material or documents from the divorce proceeding because the Petitioner has no legal right to access the contents of the sealed file.

Respondent brings a cross-petition to disqualify the Petitioner from acting as fiduciary pursuant to SCPA 707(1)(e), also on the ground of dishonesty. Respondent's argument is based upon Petitioner's prior sworn petition with this Court along with photographic evidence of the Petitioner and her siblings removing Decedent's personal property from the marital home.

"The dishonesty contemplated by the statute must be taken to mean dishonesty in money matters from which reasonable apprehension may be entertained that the funds of the estate would not be safe in the hands of the executor." Matter of Latham's Will 145 App Div. 849. A mere isolated act of wrongdoing is not enough to disqualify a fiduciary for dishonesty. The documentation currently before the Court, presented by both sides, is not enough to make a determination on the matter without first going through the formal channels of conducting a hearing. Estate of Marie Starace Knee, 2015 NYLJ Lexis 3597."