This petition filed by Mark Meyers and Diana Godman pursuant to SCPA §711(2) and (8), for a decree revoking letters testamentary previously granted to Robert J. Meyers and appointing Mark Meyers as the successor executor, is granted.

The decedent died testate on February 21, 2006. His will nominates Robert J. Meyers as primary executor and Mark Meyers as the alternate. Paragraph SECOND of the will contains a bequest of all the decedent's motor vehicles and specified items of personal property to Robert J. Meyers. The rest of the estate is bequeathed in equal shares to the decedent's sister, Doris Doyle, nephews Robert J. Meyers and Mark Meyers, and a niece, Diana Godman.

The probate petition approximates the gross testamentary estate is greater than $250,000.00 but less than $500,000.00. Personal property is valued at $225,000.00, and improved real property in New York is estimated at $250,000.00. The decree admitting decedent's will to probate was signed and entered on March 15, 2006. Letters testamentary were issued to Robert J. Meyers.

The record in the proceeding reveals that the decedent's

real estate consists of a lot improved by a residence located at 33 Woodlawn Avenue, Poughkeepsie, New York. It is uncontradicted that the executor has resided at the residence rent free since his appointment.

Petitioners allege that the executor has failed to either lease the premises or arrange to sell it on the open market. They also urge that the executor has failed to adequately maintain the premises and has used estate assets to benefit himself while living in the residence. The executor's response to the failure to sell allegation is that he has retained a realtor for that purpose but is awaiting the decision of the court. This begs the question. Paragraph FIFTH of the will grants him unfettered power to sell the real estate upon such terms and conditions he deems shall [*2]be in the best interest of the estate. Nor has he confronted the accusation that he has engaged in self-dealing with a plausible explanation.

It is uncontradicted that the executor has not complied with 22 NYCRR §207.20 by failing to file an inventory of assets with the court. No Federal or New York Estate Tax returns will be required based upon the estimated gross testamentary estate set forth in the probate petition. Therefore, the executor was mandated to file the inventory six (6) months from the issuance of letters testamentary, (22 NYCRR §207.20[a][3]), which in this case would be by September 15, 2006.

22 NYCRR §207.20(c) provides that if the inventory is not filed, the court "may revoke the letters...Failure to voluntarily file such list of assets may also constitute grounds for disallowance of commissions or legal fees."

Petitioners have met their burden of proof pursuant to SCPA §711(2) and (8). No hearing is required based upon a very clear record in this proceeding.

Robert J. Meyers is removed as executor of the estate and his letters testamentary are revoked, effective immediately. He is ineligible to receive commissions. Mark Meyers is appointed successor executor upon qualifying pursuant to law and upon filing a bond in the sum of $200,000.00. (SCPA §708[3]; Turano & Radigan, New York Estate Administration, 2007 Edition, §14.02[d].)

The successor executor may avail himself of the remedies set forth in Article 21 of the SCPA upon assuming his office.

On this application, the Court considered the verified petition with two (2) exhibits and supporting affidavit with one (1) exhibit, notarized answer with six (6) exhibits and reply affidavit.

Counsel for petitioners is directed to submit a decree consistent with the foregoing within ten (10) days from the date of this decision.

The foregoing constitutes the decision of the Court.

Dated:Poughkeepsie, New York

May 7, 2007

ENTER

HON. JAMES D. PAGONES, S.C.J.

050307 decision