N.Y. Surrogate's Court Procedure Act § 718: Nominated fiduciaries in war service 1

§ 718. Nominated fiduciaries in war service

1. Whenever a person nominated in a will or lifetime trust instrument

as executor, guardian or trustee is engaged in war service as defined in

the preceding section and is unable to qualify as fiduciary because of

such service, his failure to so qualify shall not be deemed a final

renunciation but a temporary one which shall become final 6 months after

such nominated fiduciary ceases to be engaged in war service. If the

will or lifetime trust instrument does not name a co-fiduciary or

successor fiduciary or if the co-fiduciary or successor fiduciary is

unwilling or unable to act and the failure of the nominated fiduciary in

war service to qualify leaves no person acting as fiduciary or will

leave the sole beneficiary of a trust as the only active trustee

thereof, any person interested may file a petition praying for the

appointment of a successor to the nominated fiduciary in war service.

Notice of the application shall be given to the persons and in the

manner directed by the court. Within 6 months from the date the

nominated fiduciary ceases to be engaged in war service, and if any of

the duties of his office remain unexecuted, he may file a petition

praying that he be appointed executor, guardian or trustee, as the case

may be, in accordance with the terms of the will or lifetime trust

instrument. Notice of the application shall be given to the persons and

in the manner directed by the court. The court may grant the

application and direct the issuance of letters to or appoint the

petitioner jointly with the fiduciary acting or may remove or revoke the

letters of the successor appointed to take the place of the nominated

fiduciary or may make such other order or decree as justice requires.

The removal and revocation of the letters of the original successor to

the nominated fiduciary shall not bar the successor from subsequently

qualifying as fiduciary if for any reason thereafter it becomes

necessary that a fiduciary be appointed.

2. The commissions of a successor appointed under this section shall

be computed in accordance with the provisions of 2307, 2308 or 2309,

whichever section is applicable to the fiduciary, except that where the

successor is removed or his letters revoked he shall not be entitled to

commissions for paying or delivering the estate to the nominated

fiduciary upon his qualification.